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DEMOCRACY AND 
REPRESENTATION 
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Democracy and Representation 


London: Humphrey Milford 
Oxford Unwersity Press 


Democracy 
and Kepresentation 


By 
William Seal Carpenter, Ph.D. 


Assistant Professor of Politics 
in Princeton University 


Princeton 
Princeton University Press 
1925 


Copyright 1925, Princeton University Press 


Printed at the Princeton University Press, Princeton, N.J., U.S.A. 


PREFACE 


Tue Convention of 1787 marks the close of a long 
period during which the ideas fundamental to the 
American theory of government had their growth. 
The members of the convention regarded the 
government then under construction as an experi- 
ment, which must either prove successful or reveal 
as fallacious the entire set of political ideas de- 
veloped in this country. James Madison observed 
that “it was more than probable we were now di- 
gesting a plan which in its operation would decide 
forever the fate of republican government.” AI]- 
exander Hamilton “concurred with Mr. Madison 
in thinking we were now to decide forever the fate 
of republican government; and that if we did not 
give to that form due stability and wisdom, it 
would be disgraced and lost among ourselves, 
disgraced and lost to mankind forever.” In the 
judgment of these men the foundations of the 
system of representative democracy had already 
been laid in the thought and experience of the 
American people. It was not expected that the 
work of the framers would endure forever, but it 
was believed that the form of government must 


CONTENTS 


be so contrived as to continue throughout the ex- 
istence of the ideas underlying it. As it happens, 
the people of the United States are very slow to 
embrace new political ideas, and it may well be — 
questioned whether the principles of 1787 do not 
today represent the whole stock of their funda- 
mental ideas. In this little book I have attempted 
to discuss the principle of representation as it has 
been applied in this country. The work is by no 
means complete, for I have not explained the 
origin of any of the ideas with which I deal. I 
have, however, undertaken to account for the 
changes which the American theory of represen- 
tation has undergone since the establishment of 
the Constitution. To describe the process by which 
the men of 1787 came into the possession of their 
political ideas is a much greater task which I 
shall attempt in a later volume. 


Princeton, September 29, 1925 W..S, 0, 


Synopsis of Contents 
PAGE 
I. The Foundations of Democracy 1 


The democratic dogma asserted in the Declaration of In- 
dependence had its origin much earlier in the political 
thought of England and America. It involved the idea of 
the sovereignty of the people and the right of revolution. 
But whether the political institutions through which it can 
be realized rest upon choice, or are determined by the nature 
and life of a people, was not fully considered until the Con- 
vention of 1787. The speeches of Madison, Hamilton and 
James Wilson envisage different. aspects of this problem. 
They disclose the fact that social and economic forces in | 
America favor democracy, but indicate also the need of 
security for private rights. Madison believed that the re- — 
conciliation of democracy with stable government is possible 
if the spirit of faction be curbed, by tying in a nice poise 
and balance through the clauses of a written constitution 
the vital political forces in the state. This ideal of dynamic 
equilibrium, achieved in the Constitution of the United 
States, has been consistent with the growth of social and 
economic equality. By avoiding the lodgment of power in 
the hands of any class or sectional group, the government 
set up under the Constitution has been capable of adaptation 
to the changing needs of the people of the United States. 
At the same time, a clear distinction has been maintained 
between the sovereignty which vests in the people and the 
powers which are delegated to the government. This prin- 
ciple, derived from John Locke, has pointed the way: to the 
achievement of democracy in the United States during the 
nineteenth century. But these later developments were fully 


SYNOPSIS OF CONTENTS 


foreshadowed by the liberal spirit of the Convention of 
1787. 


IJ. The Idea of Representation 39 


The idea of representation, notwithstanding the denial of 
Rousseau, is implied in the doctrine of popular sovereignty. 
In the Convention of 1787, representation was considered as 
a substitute for direct action by the people. This concep- 
tion differed from that which came to be held in England, 
where the representative assembly was intended to watch 
over and check the government. It involved the notion that 
the executive and the legislature should reflect directly the 
popular sentiment; for the doctrine of the separation of 
powers precluded any branch of the government in the 
United States from acting as a checking body. But the no- 
tion that the legislative assembly will be a miniature of the 
electorate has heen failed because the representatives are 
not always able or willing to reflect the opinions of their 
constituents. The framers of the Constitution not only did 
not insert provisions which insure a harmony of interests 
between representatives and constituents but also created, 
by the compromise on the apportionment of representation, 
the great “‘sinister interest” of States’ rights. The decline 
in prestige of Congress is due in large measure to the evils 
of local sentiment and special interests. Degradation of the 
| legislature has been accompanied by exaltation of the ex- 
_ ecutive. The President has come to be the only available 
exponent of the general sentiment. This division of represen- 
| tation is fraught with danger, but for the present seems 
necessary to secure adequate leadership. 


IlJ. The Forms of Government 713 


The republican form of government was compounded by 
_ engrafting upon democracy the principle of representation. 


[ viii ] 


SYNOPSIS OF CONTENTS 


In this process, the basis of representation was not found in 
social or economic groups, although property qualifications 
for suffrage were not forbidden. The wisdom of fixing the 
basis of representation on the number of inhabitants has 
been justified by subsequent developments; for it is clear | 
that the adoption of equal representation of States in the/ 
Senate has led to serious evils. So great have these evils 
become that an amendment of the Constitution is desirable 
to effect a remedy. Although the States have declined in 
importance, sectional differences have arisen. It is there- 
fore desirable to have a second chamber elected on a basis 
of population but apportioned among distinct sectional 
groupings. This would at the same time enable the various 
economic interests to display their strength in the elections. | 
A reform of this sort, together with the disfranchisement of | 
the vicious and the illiterate, appear to be steps by which | 
democracy may be advanced. External devices, however, can 
promote democracy only with a people who are able and 
willing to do all that is required for its furtherance. 


CHAPTER I 


‘The Foundations of Democracy 


HE democratic dogma finds its foundation 

in the principle that governments derive 
their just powers from the consent of the gov- 
erned. Asserted in the Declaration of Indepen- 
dence, the dictum merely restates conclusions 
long accepted in the political theory of England 
and America. If the nature of sovereign power 
was nowhere subjected to careful scrutiny in the 
formative period of American political institu- 
tions it was because of the widespread belief that 
“the people were in fact the fountain of all power, 
and by resorting to them all difficulties were got 
over.” ! 

It was a very practical conception of popular 
sovereignty that pervaded American political 
thought. As a result of more than a century of 
town-meetings with their instructions to repre- 
sentatives in the colonial assemblies, the idea had 
emerged that the people as a whole have in their 
hands a power which can be counted upon to se- 
1M. Farrand, Records of the Federal Convention, II, p. 476 


DEMOCRACY AND REPRESENTATION 


cure obedience. The Continental Congress recog- 
nized the existence of this power when its mem- 
bers refused to enter upon the important question 
of independence until they had obtained proper 
instructions from the popular assemblies which 
had elected them.? Even in the Convention of 
1787 the Delaware delegates at first objected to 
considering the proposals for a new constitution 
because their credentials did not allow them to go 
so far.* It was this same belief in the supreme 
authority of the people which led James Madison 
to argue for the ratification of the Constitution 
through popular conventions. 

In order to discover the origins of this power 
the American colonists in 1776, like their English 
forebears in the previous century, turned back to 
the state of nature. “It appears to me,” wrote a 
correspondent to Samuel Adams, “if there is any 
force in the late Acts of Parliament, they have 
set us afloat; that 1s, have thrown us into a state 
of nature. We now have a fair opportunity of 
choosing what form of government we think 
proper, and contract with any nation we please 


2A. W. Small, Beginnings of American Nationality (J.H.U. Studies, 8th 
ser.), p. 74 
3Farrand, I, p. 37 


Le 


THE FOUNDATIONS OF DEMOCRACY 


for a king to reign over us.’’* The formation of 
new constitutions was regarded by many of the 
patriots as the work of a people convened in the 
state of nature who had “‘deputed a few fathers 
of the land to draw for them a glorious cove- 
nant.” If it could be argued that the condition 
of the people of Massachusetts, or any other of 
the thirteen colonies, contrasted strangely with 
eighteenth century conceptions of the state of 
nature, the ready answer was that the device | 
served to reveal the people as the source of su- 
preme power. 

The theory of popular sovereignty embraced 
clearly enough the idea that the people have the 
right to alter their government. In the state of 
nature this essential attribute of sovereign power 
was discernible in the hands of the people to a 
greater degree than in civil society. According to 
John Locke, who identified this power with the 
right of revolution, it was not to be exercised for 
light and transient causes, a view which seems to 
have commended itself to the framers of the Dec- 
laration of Independence. But since the power 


4H. A. Cushing, History of the Transition from Provincial to Common- 
wealth Government in Massachusetts, p. 8 footnote 
SH. Niles, Principles and Acts of the Revolution, p. 71. See also ibid., p. 66 


[3] 


DEMOCRACY AND REPRESENTATION 


was thought to exist as a natural right, it was in- 
capable of qualification or limitation. Hence the 
sovereignty of the people came to be identified 
with civil liberty, as “a power existing in the peo- 
ple at large, at any time, for any cause, or for no 
cause, but their own sovereign pleasure, to alter 
or annihilate both the mode and essence of any 
former government, and adopt a new one in its 
stead.’’6 

When the convention to frame a constitution 
for the United States assembled at Philadelphia 
in May 1787, the question of the ultimate seat of 
authority did not require discussion. Every dele- 
gate realized that each separate constitutional 
construction would have to find ratification at 
the hands of the people. But there remained the 
issue between free will and determinism. That is 
to say, were the institutions to be set up in the 
Constitution to rest upon the choice of the con- 
vention or had they already been determined by 
the nature and life of the American people? In the 
solution of this question the members of the con- 
vention displayed great breadth of knowledge and 
much acuteness in evaluating human motives. 

Among the leading men of the convention none 
Niles, Principles and Acts of the Revolution, p. 47 


[4] 


THE FOUNDATIONS OF DEMOCRACY 


stood out more conspicuously than James Madi- 
son. He was essentially a scholar in politics, blend- | 
ing together vast knowledge and profound insight 
into human nature. A graduate of Princeton in 
the Class of 1771, Madison returned for further 
study. His undergraduate training in the classics 
was followed by the reading of Hobbes, Locke, 
Sidney, Pufendorf and other writers on political 
science in the library of President Witherspoon.’ 
The writings of Montesquieu, which formed the 
basis of Witherspoon’s classroom lectures, Madi- 
son studied minutely. He possessed the complete 
equipment which marked the man of education 
in the American colonies, and his ability to quote 
from Livy or Plutarch’s Lives and to explain the 
political contrivances of the ancient world as- 
sured him respectful attention in any assembly. 
To the inventive genius of Madison, govern- 
ment was a problem to be worked out by the 
superior minds in the convention without consid- 
ering the opinions of the “unreflecting multi- 
tude.’’® The method of his political reasoning was 
7The Library of Princeton University possesses the classroom lectures 
of President Witherspoon as well as the books contained in his private 
library. For an account of Witherspoon’s ideas on education, see V. L. 


Collins, President Witherspoon, Vol. II, pp. 201-16, passim 
8Farrand, I, p. 215 
[5 | 


DEMOCRACY AND REPRESENTATION 


very largely from historical analogy. He assumed, 
as Montesquieu had done, the accuracy and suffi- 
ciency of the accounts left by the Roman histo- 
rians, and never hesitated upon the questions of 
the nature of republics and the principles under- 
lying confederacies to cite examples from the an- 
cient world. In one of the first sessions, “‘Mr. 
Madison in a very able and ingenious speech ran 
through the whole scheme of the government,— 
pointed out all the beauties and defects of ancient 
republics; compared their situation with ours 
wherever it appeared to bear any analogy, and 
proved that the only way to make a government 
answer all the end of its institution was to collect 
the wisdom of its several parts in aid of each 
other whenever it was necessary.’’® When William 
Paterson introduced what became known as the 
“small State plan” for the modification of the 
Articles of Confederation, Madison led the oppo- 
sition and “reviewed the Amphyctionic and 
Achaean confederacies among the ancients, and 
the Helvetic, Germanic and Belgic among the 
moderns, tracing their analogy to the United 
States—in the constitution and extent of their 
federal authorities—in the tendency of the par- 
*Farrand, I, p. 110 


[ 6 | 


THE FOUNDATIONS OF DEMOCRACY 


ticular members to usurp on these authorities, 
and to bring confusion and ruin on the whole.’’!° 

Notwithstanding the flavor of finality which 
attaches to Madison’s scholarly demonstrations, 
his methods of reasoning failed to convince some 
of his colleagues. In an age which could not boast 
of critical classical scholarship, his facts were 
manifestly insufficient. Moreover, it was felt that 
the differences in his comparisons were more 
striking than the agreements. Charles Pinckney 
retorted that “the people of this country are not 
only very different from the inhabitants of any 
state which we are acquainted with in the modern 
world . . . but their situation is distinct from 
either the people of Greece or Rome, or of any 
state we are acquainted with among the ancients. 
Can the orders introduced by the institution of 
Solon, can they be found in the United States? 
Can the military habits and manners of Sparta be 
resembled to our habits and manners? Can the 
Helvetic or Belgian confederacies, or can the un- 
wieldy, unmeaning body called the Germanic 
Empire, can they be said to possess either the 
same or a situation like ours?’ He denied that 
any two people were so exactly alike as to admit 


- -10gbid., p. 317 


Le] 


DEMOCRACY AND REPRESENTATION 


of the same political institutions. “A system,” he 
said, “‘must be suited to the habits and genius of 
the people it is to govern, and must grow out of 
them.’’!! 

Many years later John Stuart Mill in the open- 
ing sentences of his famous essay on representa- 
tive government summed up the two conflicting 
theories respecting political institutions which are 
revealed in the debate between Madison and 
Pinckney. But the Federal Convention antici- 
pated Mill in holding that each of these doctrines 
is untenable if pushed to an exclusive and logical 
conclusion. The framers of the Constitution dis- 
covered that although the construction of a gov- 
ernment may be the result of the conscious pur- 
poses of men, the institutions set up must be 
congenial to the spirit of the people for whom 
they are intended. 

Everyone is familiar with the statement of 
Gladstone that “the American Constitution is the 
most wonderful work ever struck off at a given 
time by the brain and purpose of man.” Yet the 
extent to which political institutions are a matter 
of rational choice received less enlightenment 


11 Farrand, I, pp. 401-2. For a similar criticism by James Wilson, see J. 
Elliot, Debates, II, pp. 422-3 


Eos 


THE FOUNDATIONS OF DEMOCRACY 


from the Convention of 1787 than has generally 
been supposed. The primary purpose was to estab- 
lish a national government which should provide 
security for private rights and the steady dispen- 
sation of justice. “Interferences with these,” said 
Madison, “were evils which had more perhaps 
than anything else produced this convention.” 
But the framers of the Constitution could not 
break with the political theory of the time. They 
were fully conscious of the fact that the genius of 
the American people was in favor of democracy.” 
Indeed, the limits of political speculation were 
fixed by the democratic dogma of the Declaration 
of Independence. There could be no dissent from 
the mandate that governments derive their just 
powers from the consent of the governed. Con- 
fronted with the necessity of reconciling the prin- 
ciples of democracy and the security of private 
rights, the convention was reduced to the di- 
lemma noted by Alexander Hamilton in which 
“the members most tenacious of republicanism 
. were as loud as any in declaiming against 
the vices of democracy.” 
Hamilton, as he argued for the adoption of the 
Constitution, raised the question “whether soci- 
” Farrand, I, p. 101 


[9] 


DEMOCRACY AND REPRESENTATION 


eties of men are really capable or not of estab- 
lishing good government from reflection and 
choice, or whether they are forever destined to 
depend for their political constitutions on acci- — 
dent and chance.”’ His answer was that a govern- 
ment would succeed in proportion to the interest 
enlisted in its support.’ “Men will pursue their 
interests,’ he told the New York Convention in 
1788. “‘It is as easy to change human nature as 
to oppose the strong current of selfish passions. 
A wise legislator will gently divert the channel, 
and direct it, if possible, to the public good.” 
According to this principle, the part to be played 
by reason is to point out interest. 

What Hamilton assumed was that men recog- 
nize their interests and consciously shape their 
political conduct to promote them. A man may 
have a very clear conception of his own interest. 
But it is a difficult thought process to discover the 
precise measures which will promote that interest. 
A merchant conceives it to be his interest to sell 
goods. But he can recognize only dimly, and often 
not at all, the kind of legislation which will assure 
him the best market. Hamilton appreciated the 


13 Federalist, No. 11 
“4Elhot, Debates, I, p. 320 


[ 10 | 


THE FOUNDATIONS OF DEMOCRACY 


bewilderment of the average citizen when called 
upon to make a decision which he hopes may be 
consistent with his interest. He believed that this 
decision could be rightly made only by the legis- 
lator. It was therefore necessary that government 
possess sufficient stability and permanency to 
control the political vagaries of the people. 

In the Federal Convention, Hamilton “ac- 
knowledged himself not to think favorably of re- 
publican government,” but “he was sensible at 
the same time that it would be unwise to propose 
one of any other form. In his private opinion, he 
had no scruple in declaring . . . that the British 
Government was the best in the world, and that 
he doubted much whether any thing short of it 
would do in America.” These remarks led to the 
charge that Hamilton favored a monarchical 
form of government. In point of fact, he desired a 
very simple political structure and aimed his 
criticism at the “multiple agency system”  in- 
volved in the contemporary conception of a 
republic. 

Hamilton appreciated that the British monar- 
chical form could not be transferred intact to 
American soil. He believed at this time a maxim 
4 Farrand, I, p. 288 


[ei 


DEMOCRACY AND REPRESENTATION 


he later expressed by saying that “what may be 
good at Philadelphia, may be bad at Paris, and 
ridiculous at Petersburg,’ a formula which, of 
course, could be reversed and made to include 
London." His real desire seems to have been to 
combine popular participation in government 
with the separation of powers and the stability of 
the British system. Writing to Gouverneur 
Morris ten years before the Federal Convention, 
Hamilton had said: “That instability is inherent 
in the nature of popular government I think very 
disputable; unstable democracy is an epithet fre- 
quently in the mouths of politicians; but I believe 
that from a strict examination of the matter, 
from the records of history, it will be found that 
the fluctuations of governments In which the pop- 
ular principle has borne a considerable sway, have 
proceeded from its being compounded with other 
principles;—and from its being made to operate 
in an improper channel. Compound governments, 
though they may be harmonious in the beginning, 
will introduce distinct interests, and these inter- 
ests will clash, throw the State into convulsions, 
and produce change or dissolution. When the de- 
liberative or judicial powers are vested wholly or 
161. B. Dunbar, Monarchical Tendencies in the United States, p. 88 


[ 12 | 


THE FOUNDATIONS OF DEMOCRACY 


partly in the collective body of the people, you 
must expect error, confusion, and instability. 
But a representative democracy, where the right 
of election is well secured and regulated, and the 
exercise of the legislative, executive, and judiciary 
authorities is vested in select persons, will, in my 
opinion, be most likely to be happy, regular, and 
durable.’’!” The idea of responsible government 
through the cooperation of the legislative and ex- 
ecutive departments is here discerned long before 
the rise of the cabinet system was reflected in 
political philosophy. 

The ideas of Hamilton did not prove acceptable 
to the Federal Convention partly because of the 
aristocratic flavor of some of his proposals but 
especially on account of the extreme nationalism 
of his plan. His proposal to reduce the States to 
“corporations for local purposes’’ alienated the 
entire group of believers in States’ rights.!* Ham- 
ilton never appreciated the popular attachment to 
the State governments. His realism would not per- 
mit him to see that men often cling through senti- 
“Works, IX, pp. 71-2 
18 Farrand, I, p. 287. Hamilton explained in the Federal Convention the 

precise position he thought the States ought to occupy in the new 


scheme of government, but his remarks were not calculated to soothe 
the advocates of States’ rights. See Farrand, I, pp. 323, 358 


[ 13 | 


DEMOCRACY AND REPRESENTATION 


ment to institutions which may be shown through © 
logical arguments to be imperfect. Toward the 
close of his life, Hamilton remarked that “nothing 
is more fallacious than to expect to produce any — 
valuable or permanent results in political projects 
by relying merely on the reason of men. Men are 
rather reasoning than reasonable animals, for the 
most part governed by the impulse of passion.’’!® 
If he had adapted his proposals in the Conven- 
tion of 1787 to the spirit of the American people, 
his arguments would doubtless have carried much 
weight. But, as Dr. Johnson said, “‘the gentleman 
from New York . . . has been praised by every- 
body, he has been supported by none.” 

The most sublimated conception of democracy 
is to be found in the utterances of James Wilson 
of Pennsylvania. Born and educated in Scotland, 
Wilson came to America when twenty-three 
years old. He served several times in Congress 
and was one of the signers of the Declaration of 
Independence. At forty-five he was regarded as 
one of the ablest lawyers in the country. Intellec- 
tually the equal of Madison, he was not afflicted 
with the shyness which marked the Virginian in 
the company of others. But he was at a disadvan- 
19Works, X, p. 432 


[ 14 ] 


THE FOUNDATIONS OF DEMOCRACY 


tage in lacking the intimate acquaintance with 
his colleagues which Madison possessed. 

From the outset Wilson was at once demo- 
cratic and national. “He could not agree that 
property was the sole or the primary object of 
government and society. The cultivation of the 
mind was the most noble object. . . . Conceiving 
that all men wherever placed have equal rights 
and are equally entitled to confidence,” he in- 
sisted that “the majority of people wherever 
found ought in all questions to govern the minor- 
ity.’?° None, with the exception of Gouverneur 
Morris, was so often on his feet during the de- 
bates. Each time he spoke directly to the pur- 
pose, seeking to emphasize and enlarge upon the 
idea that any government, if it is to enjoy the 
public confidence, must reflect the mind or sense 
of the people at large. 

Wilson “‘wished for vigor in the government, 
but he wished that vigorous authority to flow 
from the legitimate source of all authority.”?! For 


20Farrand, I, p. 605. For an interesting study of the political theory of 
James Wilson, see A. C. McLaughlin, “James Wilson in the Philadel- 
phia Convention,” Political Science Quarterly, XII, pp. 1 ff. The most 
complete statement of Wilson’s philosophy is contained in his lectures 
before the law students of the University of Pennsylvania in 1790. 
Works (ed. Andrews), 2 vols. Chicago, 1896. 

1ibid., p. 132 


[ 15 | 


DEMOCRACY AND REPRESENTATION 


this reason, he sought “to derive not only both 
branches of the legislature from the people, with- 
out the intervention of the State legislatures, but 
the executive also.”? He admitted the difficulty 
of defining with precision the sentiments of the 
people throughout the thirteen States. But “he 
could not persuade himself that the State govern- 
ments and sovereignties were so much the idols of 
the people, nor a national government so obnox- 
ious to them as some suppose.’ Both were meant 
for the people, and “the same train of ideas which 
belonged to the relation of the citizens to their 
State governments were applicable to their rela- 
tions to the general government, and in forming 
the latter, we ought to proceed by abstracting as 
much as possible from the idea of State govern- 
ments. With respect to the province and objects 
of the general government, they should be con- 
sidered as having no existence.’ 

Filled with the democracy of the next century, 
Wilson regarded the officers of government as the 
servants of the people. Representation was “made 
necessary only because it is impossible for the 
people to act collectively.” From this theory it 


2 Farrand, I, p. 69 
*3¢bid., p. 253 


[ 16 | 


THE FOUNDATIONS OF DEMOCRACY 


necessarily followed that in the selection of po- 
litical institutions the convention should aim at 
a single object, “the accommodation of the 
voters.” 

The democratic doctrine was favored by the 
economic circumstances in the United States. 
Among the people there were few distinctions of 
rank and less of fortune. Land was the chief form 
of property and its wide distribution brought 
about in fact a considerable economic equality to 
correspond to the theory of political equality. It 
was argued by Charles Pinckney that “the people 
of the United States are more equal in their cir- 
cumstances than the people of any other country 
—that they have very few rich men among them 

. ; that it is not probable that this number 
will be greatly increased; that the genius of the 
people, their mediocrity of situation and the pros- 
pects which are afforded their industry in a coun- 
try which must be a new one for centuries are 
unfavorable to the rapid distinction of ranks.” 
Pinckney looked to the abundant free lands in the 
public domain west of the Alleghenies to maintain 
the economic and social equality of the American 
people. ‘“That vast extent of unpeopled territory,” 
he said, “which opens to the frugal and industri- 


La 


DEMOCRACY AND REPRESENTATION 


ous a sure road to competency and independence 
will effectually prevent for a considerable time 
the increase of the poor or discontented, and be 
the means of preserving that equality of condi- 
tion which so eminently distinguishes us.’ 

But the democratic ideal, as Wilson moulded 
it, could not be reconciled with the necessary pro- 
tection of private rights. Madison was quick to 
see that the central problem of democracy is not 
the maintenance of equality but the preservation 
of liberty. Within the limited areas of the several 
States disturbances had already arisen which 
made him shrink from the logical consequences 
of unfettered democracy. Despite the apparent 
freedom of economic opportunity, Madison saw 
in the popular demands for paper money legisla- 
tion and stay laws evidences of a diversity of in- 
terests among the people of the United States. In 
reply to Pinckney, he said: ““We cannot be re- 
garded even at this time as one homogeneous 
mass in which every thing that affects a part will 


4Farrand, I, p. 400. The remarks in the convention of Charles Pinckney, 
Mason, and Madison on the one side and Gouverneur Morris, Elbridge 
Gerry and others on the other side of the question of the political sig- 
nificance of the frontier anticipate the conclusions reached by nearly 
all of the group of American historians who have in recent years dealt 
so copiously with the subject. By 1787 the frontier as a political issue 
was fully defined. 


[ 18 | 


THE FOUNDATIONS OF DEMOCRACY 


affect in the same manner the whole. In framing a 
system which we wish to last for ages, we should 
not lose sight of the changes which ages will pro- 
duce. An increase of population will of necessity 
increase the proportion of those who labor under 
all the hardships of life and secretly sigh for a 
more equal distribution of its blessings. These 
may in time outnumber those who are placed 
above the feelings of indigence. According to the 
equal laws of suffrage, the power will slide into 
the hands of the former. No agrarian attempts 
have yet been made in this country, but symp- 
toms of a levelling spirit, as we have understood, 
have sufficiently appeared in certain quarters to 
give notice of the future danger.” Equality 
which did not exist by nature could not be estab- 
lished through universal suffrage and majority 
rule. To the Virginian it was fallacious to suppose 
“that by reducing mankind to a perfect equality 
in their political rights, they would, at the same 
time, be perfectly equalized and assimilated in 
their possessions, their opinions, and their pas- 
sions.’ As long as there was a diversity in the 


%ibid., pp. 421-2 

°6 Federalist, No. 10. Madison had long reflected upon the theory advanced 
in this number of the Federalist. As early as April 1787, he had outlined 
his ideas. Writings (ed. Hunt), II, pp. 361 ff. This sketch formed the 


Fibeet 


DEMOCRACY AND REPRESENTATION 


faculties of men, there could be no uniformity of 
interests. Inequality Madison regarded as the 
natural condition of men, which the statesman 
must take into account in the formation of popu- — 
lar government. 

Madison believed that democracy could be rec- 
onciled with the security of private rights if the 
spirit of faction could be curbed. By faction he 
did not mean a party in the modern sense of the 
word, but “‘a number of citizens, whether amount- 
ing to a majority or minority of the whole, who 
are united and actuated by some common im- 
pulse of passion, or of interest, adverse to the 
rights of other citizens, or to the permanent and 
aggregate interests of the community.’’” Such 
“blocs” would always be dangerous because al- 
ways actuated by selfish motives. 

But the causes of faction he traced to “‘the na- 
ture of man,” where latent dispositions are 
“brought into different degrees of activity, ac- 
cording to the different circumstances of civil so- 
ciety.” He observed that “‘all civilized societies 
would be divided into different sects, factions, 


basis of his speech of June 6 in the Federal Convention. Farrand, I, 
p. 135 
27 Federalist, No. 10 


[ 20 | 


THE FOUNDATIONS OF DEMOCRACY 


and interests, as they happened to consist of rich 
and poor, debtors and creditors, the landed, the 
manufacturing, the commercial interests, the in- — 
habitants of this district or that district, the fol- 
lowers of this political leader or that political 
leader, the disciples of this religious sect or that 
religious sect. In all cases where a majority are 
united by a common interest or passion, the 
rights of the minority are in danger.’’” 
Although the causes of faction could not be re- 
moved, the control of its effects was within 
human power. ““The only remedy,”’ said Madison, 
“is to enlarge the sphere, and thereby divide the 
community into so great a number of interests 
and parties, that in the first place a majority will 
not be likely at the same moment to have a com- 
mon interest separate from that of the whole or of 
the minority; and in the second place, that in case 
they should have such an interest, they may not 
be apt to unite in the pursuit of it.”?® That is to 
say, the vital political forces in the state should 
be tied up in a nice poise through the clauses of a 
written constitution. A government so contrived 
Mould, as Madison believed, “secure the perma- 


*8 Farrand, I, p. 135 
- 27bid., p. 136 


[ 21 | 


DEMOCRACY AND REPRESENTATION 


nent interests of the country against innovation.” 

The ideal which Madison envisaged was one of 
dynamic equilibrium. He thought that by deriv- 
ing the various branches of the government from 
different sources all positive action to the detri- 
ment of established order and guaranteed rights 
would be checked from the outset. Every safe- 
guard against “‘the mutability of public councils” 
was to be embodied in the interior structure of 
the government itself. The keystone of the whole 
edifice was to be the system provided for judicial 
control, through which the Constitution would 
be preserved inviolate against legislative or exec- 
utive aggression. 

Apart from the idea of judicial control, which 
is the unique contribution of America to the 
science of government,*° the theory is that set 
forth by Montesquieu. Madison had studied 
carefully the pages of the observant Frenchman. 
The equilibrium of power which the latter had 
thought necessary to balance the enormous pre- 
ponderance of royalty in England Madison con- 
ceived to be equally essential in the United States 
as afrestraint upon temporary majorities in pur- 
suit of their selfish interests. What he failed to 
*°W.S. Carpenter, Judicial Tenure in the United States, Chap. I 


| 22 ] 


THE FOUNDATIONS OF DEMOCRACY 


take into account was the difference in the way in 
which power had come into the hands of the peo- 
ple in the two countries. The evolution of the 
British constitution had witnessed the admission 
to civil and political rights of successive classes or 
estates. The rights which each order came to en- 
Joy were first wrung as privileges from the Crown. 
At no time was the grant of privileges conditioned 
upon a theory of abstract human equality. On 
this side of the Atlantic, however, the establish- 
ment of independent governments was accom- 
panied by a declaration that all men are created 
equal. It is true that property qualifications and 
religious tests barred the way to an immediate 
realization of political equality. But the free-and- 
equal doctrine had been proclaimed as the ideal, 
and no theory which gave to property and to 
estates a place in the process of government could 
withstand its triumphal advance. The analogy 
which Madison sought to trace through the writ- 
ings of Montesquieu between the conditions of 
political life in England and those in America 
proved as defective as his earlier essays in the 
comparative governments of ancient and modern 
times. Nevertheless, the idea prevailed that the 
interior structure of the government should be so 


| 23 | 


DEMOCRACY AND REPRESENTATION 


contrived “that its several constituent parts may, 
by their mutual relations, be the means of keeping 
each other in their proper places.””*! 

The maintenance of the nice poise and balance 
of political forces involved in the theory of Madi- 
son would seem to demand that government re- 
main within the control of the classes most di- 
rectly affected. This thought was undoubtedly in 
the mind of Gouverneur Morris when he pro- 
posed restricting the right of suffrage to the free- 
holders. Morris appears to have been convinced 
of the utter depravity of man. “‘Give votes to 
people who have no property,”’ he said, “‘and they 
will sell them to the rich who will be able to buy 
them. He looked to the time when the country 
will abound with mechanics and manufacturers 
who will receive their bread from their employers. 
Will such men be the secure and faithful guard- 
ians of liberty?’* But he was reminded by 
George Mason that in some States the franchise 
had already been extended beyond the freehold- 
ers. Only five States restricted the right to vote 
to owners of real estate. In seven States alterna- 
tives to landed property were permitted, while in 


31 Federalist, No. 51 
Farrand, II, p. 202 


[ 24 | 


THE FOUNDATIONS OF DEMOCRACY 


Pennsylvania the only requirement was the pay- 
ment of public taxes.* 

Moreover, there was a strong sentiment in the 
convention that a property qualification ought to 
embrace other forms of property besides real es- 
tate. Rufus King objected to the exclusion of the 
“monied interest,’ and Madison agreed that 
property in land was not a sure criterion of 
wealth.** The idea was freely expressed that 
“every man having evidence of attachment to 
and permanent common interest with the society 
ought to share in all its rights and privileges.’’* 
None could pretend that these virtues were con- 
fined to the freeholders. 

But the real obstacle to the inclusion in the Con- 
stitution of a property qualification for the exer- 
cise of the suffrage was the accomplished fact that 
in some States the franchise was enjoyed by per- 
sons who were not owners of property. Nathaniel 
Gorham declared that “‘the elections in Philadel- 
phia, New York and Boston, where the merchants 


and mechanics vote are at least as good as those 


33K. Porter, Suffrage in the United States, pp. 12-13. George Mason de- 
clared in the convention that eight or nine States had already extended 
the right of suffrage beyond the freeholders. Farrand, II, p. 201 

Farrand, II, pp. 123-4 

*7¢bid., p. 203. For a similar statement by Alexander Hamilton, see Works, 
I, p. 90 


[ 25 | 


DEMOCRACY AND REPRESENTATION 


made by freeholders only.’’** Madison was of the 
opinion that the freeholders “would be the safest 
depositaries of republican liberty. But he was un- 
certain how a constitutional provision limiting the 
suffrage to freeholders would be received in States 
where the right was now exercised by everyide- 
scription of people.’’*” Pierce Butler “feared any 
provision which would effect any disfranchise- 
ment,’’*§ and James Wilson was “against abridg- 
ing the rights of election in any shape.”’*® The dis- 
cussion concluded with the solemn warning of 
Gorham that “the people of America who have 
been accustomed to vote without freeholds will 
not give it up.’’*° 

In the decision to omit from the Constitution 
any qualification for the suffrage the “rooted 
prejudices”’ of the people controlled the judgment 
of the delegates. But the powerful leaven of the 
democratic philosophy was destined to penetrate 
even further into the political system under con- 
struction. The adoption of the rule of numbers in 
fixing the apportionment of representation and 
6 Farrand, II, p. 216 
37 {bid., p. 204 
88 ibid., p. 202 


s9ibid., L, p. 375 
ibid., p. 216 


| 26 | 


THE FOUNDATIONS OF DEMOCRACY 


the admission of new States on equal terms with 
the old foreshadowed the democracy of the nine- 
teenth century. 

The controversy in the Convention of 1787 
over the apportionment of representation is inti- 
mately connected with the long series of contests 
between the democratic forces of the frontier and 
the aristocratic pretensions of the tidewater set- 
tlements. As early as 1676 the social revolt in Vir- 
ginia known as Bacon’s Rebellion indicated the 
character of the coming struggle. “In general this 
took these forms: contests between the property- 
holding class of the coast and the debtor class of 
the interior, where specie was lacking, and where 
paper money and a readjustment of the basis of 
taxation were demanded; contests over defective 
or unjust local government in the administration 
of taxes, fees, lands, and the courts; contests over 
apportionment in the legislature, whereby the 
coast was able to dominate, even when its white 
population was in the minority; contests to secure 
the complete separation of Church and State; 
and, later, contests over slavery, internal im- 
provements, and party politics in general.’’*! This 
antagonism between the coast and the interior 
“FJ. Turner, The Frontier in American History, pp. 110-1 


[ 27 | 


DEMOCRACY AND REPRESENTATION 


was exhibited along the entire frontier. In New 
England it gave rise to Shays’ Rebellion and to 
separatist movements in Maine, New Hampshire 
and Vermont. The frontiersmen in Pennsylvania — 
in 1764 demanded a right to share in political 
privileges with the older part of the colony, and 
protested against the apportionment by which 
the counties of Chester, Bucks, and Philadelphia, 
together with the city of Philadelphia, elected 
twenty-six delegates, while the five frontier 
counties had but ten. The three old wealthy 
counties under Quaker rule feared the growth of 
the West, therefore made few new counties, and 
carefully restricted the representation in each to 
preserve the majority in the old section. The 
States south of the Potomac showed the same 
lodgment of power in the hands of the coast, even 
after population preponderated in the upland 
country. From New England to Georgia, the in- 
terior region had a common grievance against the 
coast, that 1t was generally deprived of its due 
share of representation. 

The policy of exclusive tidewater statesman- 
ship was urged in the Philadelphia Convention 
by Gouverneur Morris. “He thought property 
ought to be taken into the estimate (of appor- 


[ 28 | 


THE FOUNDATIONS OF DEMOCRACY 


tionment) as well as the number of inhabitants. 
Life and liberty were generally said to be of more 
value than property. An accurate view of the 
matter would nevertheless prove that property 
was the main object of society. . . . Hf property 
was then the main object of government, cer- 
tainly it ought to be one measure of the influence 
due to those who were to be affected by the gov- 
ernment. He looked forward to that range of new 
States which would soon be formed in the West. 
He thought the rule of representation ought to 
be so fixed as to secure to the Atlantic States a 
prevalence in the national councils. The new 
States will know less of the public interest than 
these, will have an interest in many respects dif- 
ferent, in particular will be less scrupulous of in- 
volving the community in wars the burdens and 
operations of which would fall chiefly on the 
maritime States. Provision ought therefore to be 
made to prevent the maritime States from being 
hereafter outvoted by them. He thought this 
might easily be done by irrevocably fixing the 
number of representatives which the Atlantic 
States should respectively have, and the number 
which each new State will have.” Again he ar- 
“Farrand, I, pp. 533-4 


[ 29 | 


DEMOCRACY AND REPRESENTATION 


gued that the Western States would be unable to 
furnish “men equally enlightened” to participate 
in the work of government. “The busy haunts of 
men,” he said, “‘not the remote wilderness, was the 
proper school of political talents. If the western 
people get the power into their hands they will 
ruin the Atlantic interests. The back members are 
always most averse to the best measures.” 
The spokesman of the propertied and commer- 
cial classes, Morris had many followers in the 
convention. John Rutledge and Pierce Butler of 
South Carolina saw the advantage to the slave- 
owning planters of apportioning representatives 
on a basis of wealth as well as the number of in- 
habitants. Elbridge Gerry, who feared the influx 
of Scotch-Irish, French Huguenots and Germans 
along the frontier, pleaded that those who re- 
mained on the Atlantic seaboard might not “be 
at the mercy of the emigrants.’’* Before any ar- 
guments could be advanced on the democratic 
side, Morris had obtained the adoption of a re- 
port which allowed Congress “to regulate the 
number of Representatives” in any new States 


48Farrand, I, p. 583 
“ibod., pp. 534, 541 
7bid., II, p. 3 


THE FOUNDATIONS OF DEMOCRACY 


which might be created, “upon the principles of 
their wealth and number of inhabitants.” Since 
the Atlantic States would have control of the 
government from the outset, they could “take 
care of their own interest by dealing out the right 
of representation in safe proportions to the West- 
ern States.’”* 

It was only a temporary victory. Two days 
later the liberal view was introduced in the con- 
vention by Colonel Mason. “From the nature of 
man,” he said, “we may be sure that those who 
have power in their hands will not give it up while 
they can retain it. . . . Ought we to sacrifice 
what we know to be right in itself, lest it should 
prove favorable to States not yet in existence? If 
the Western States are to be admitted into a 
Union as they arise, they must, he would repeat, 
be treated as equals, and subjected to no degrad- 
ing discriminations.’’*7 Mason was supported by 
Edmund Randolph, who observed that ‘‘Con- 
gress have pledged the public faith to the new 
States, that they shall be admitted on equal 
terms. They never would nor ought to accede on 


*ibid., I., pp. 559-60 
“Tibid., p. 578 


[ 31 | 


DEMOCRACY AND REPRESENTATION 


any other.’’** Not only the abstract principle of 
right but a contractual obligation of the Con- 
gress under the Articles of Confederation also 
confronted the exclusive policy of Gouverneur 
Morris and the party of tidewater control. 

Congress had two months earlier been peti- 
tioned to provide for the opening of the territory 
in the valley of the Ohio River. A joint-stock 
company had been formed by two enterprising 
citizens of Massachusetts to promote the settle- 
ment of the unoccupied lands; eager, impover- 
ished veterans of the Revolutionary War were 
ready to go and take possession at once. At their 
request the Ordinance for the Government of the 
Territory Northwest of the Ohio had been drafted 
and awaited the final vote. It contained in un- 
mistakable terms the recognition of the equality 
of the western people with the inhabitants of the 
old thirteen States. On July 13, a quorum being 
present in Congress, the bill became a law. At 
almost the same hour, the Constitutional Con- 
vention resolved to apportion representatives 
solely on a basis of the number of inhabitants. 
This step having been taken, no further objection 
was interposed to writing into the Constitution 
48Farrand, I, p. 580 


| 32 | 


THE FOUNDATIONS OF DEMOCRACY 


provisions which opened the way to the admis- 
sion of new States on terms of equality with those 
already in existence.*® 

The Constitution was, from the point of view 
of eighteenth century political theory, a demo- 
cratic document. It is true, the democratic char- 
acter of the instrument depends largely upon the 
failure to lodge political power in the hands of 
special classes or interests. But it was recognized 
that with unrestricted suffrage, the apportion- 
ment of representation according to the rule of 
numbers, and the admission of new States on a 
parity with those already established, the Con- 
stitution would not endanger the growth of eco- 
nomic and social equality. Harrington in the 
seventeenth century had predicated the success 
of republican institutions upon the widespread 
ownership of land.*° In similar vein Madison de- 
clared that “the extent and fertility of the western 
soil would for a long time give to agriculture a 
preference over manufactures. . . . The value of 
labor might be considered as the principal cri- 
terion of wealth and ability to support taxes; and 


49 Rufus King, in the debates on the admission of Missouri into the Union, 
argued that the power of Congress to admit new States is conferred 
without limitation. Life and Correspondence of Rufus King, V1, p. 691 

*°Oceana (ed. Morley), p. 19 


[ 33 | 


DEMOCRACY AND REPRESENTATION 


this would find its level in different places where 
the intercourse should be easy and free, with as 
much certainty as the value of money or any 
other thing. Wherever labor would yield most, 
people would resort, until the competition should 
destroy the inequality.’ 

For a period extending over ninety-six days the 
Federal Convention was engaged in its momen- 
tous task. Human reason and human prejudices 
played their part in framing the great document 
which has since served as the basis of government 
in the United States. Yet there were added few 
provisions which could not be found in the State 
constitutions or in the Articles of Confederation. 
The framers were dependent largely upon the 
political experience of their own immediate past; 
they were not seeking innovations. As John Dick- 
inson said in the course of the debates: “*E:xperi- 
ence must be our only guide. Reason may mislead 
us. It was not reason that discovered the singular 
and admirable mechanism of the English Consti- 
tution. It was not reason that discovered or ever 
could have discovered the odd, and in the eyes of 
those who are governed by reason, the absurd 
mode of trial by jury. Accidents probably pro- 


1 Farrand, I, p. 585 
[ 34 ] 


THE FOUNDATIONS OF DEMOCRACY 


duced these discoveries, and experience has given 
sanction to them. This then is our only guide.” 
Human ingenuity was limited in the main to 
adapting to the requirements of a new govern- 
ment institutions that were very old. The growth 
of those institutions may be traced back through 
the State constitutions, the colonial charters and 
the charters of the trading companies, to their 
origins in the great landmarks of English consti- 
tutional development. The continuity of this de- 
velopment was not broken in 1787. As Madison 
said in the Federalist: ““The truth is, that the 
great principles of the Constitution proposed by 
the convention may be considered less as abso- 
lutely new, than as the expansion of principles 
which are found in the Articles of Confederation. 
.. . If the new Constitution be examined with 
accuracy and candor, it will be found that the 
change which it proposes consists less in the addi- 
tion of New Powers to the Union, than in the in- 
vigoration of its Original Powers.”’* 

The crowning feature of the American political 
system as it was worked out during the summer 
of 1787, from the point of view of popular govern- 


27bid., II, p. 278 
3 Federalist, No. 45 


[ 35 | 


DEMOCRACY AND REPRESENTATION 


ment, is the clear distinction between the sover- 
eignty which vests in the people and the powers 
which are delegated to the government. When 
the members of the convention adjourned on the 
Fourth of July to celebrate the anniversary of the 
Declaration of Independence, they heard with 
approval from the lips of Dr. Benjamin Rush the 
doctrine that “all power is derived from the 
people; they possess it only on the days of their 
elections. After this, it is the property of their 
rulers.’’** The distinction made by Rousseau be- 
tween state and government is here preserved. 
But the people cease to be active in political 
affairs as soon as the government has been set 
up, except at the periodical elections. By the act 
of setting up a government the people divest 
themselves of the rights which they transfer to 
the government. That is to say, the function of 
governing becomes lodged exclusively in the gov- 
ernment. The true distinction between the democ- 
racies of ancient Greece and the American govern- 
ment, declared the writers of the Federalist, “‘lies 
an the total exclusion of the people, in thetr collective 
capacity, from any share in the latter.” 


54Niles, p. 234 
55 Federalist, No. 63 


| 36 | 


THE FOUNDATIONS OF DEMOCRACY 


The political philosophy of which this type of 
state is the central object was expounded by John 
Locke in the seventeenth century. In Locke’s 
theory, sovereignty can exist nowhere except in 
the community as a whole. This is the original 
and supreme will which organizes the govern- 
ment and defines its just powers. It is compatible 
with almost any variety of institutions, so long as 
it is recognized that the rulers are the trustees of 
the people who delegate their powers to them. 
But the community retains the reserve power of 
revolution which may be exercised whenever the 
rulers have so far abused the trust confided in 
them that it becomes necessary for the people to 
dispose their powers in another way. In practice 
the formation or alteration of a constitution has 
proved to be identical with an act of revolution. 
Thus through the theory of Locke democracy is 
revealed rather as a spirit than as a special set of 
institutions. 

The realization of democracy in the United 
States was an achievement of the nineteenth cen- 
tury. It was fully defined in the words of Lincoln 
as he gazed upon the resting-places of the heroic 
dead at Gettysburg,—“government of the people, 
by the people, and for the people.” But this im- 


ra 


DEMOCRACY AND REPRESENTATION 


pressive formula does no more than reflect the 
liberal spirit of the Convention of 1787. With the 
settlement of the interior valleys of the West and 
the admission of new States to the Union, aristo- 
cratic pretensions came to be disregarded. The 
sort of equality contemplated by the Declaration 
of Independence gradually permeated the whole 
political system. 


CHAPTER II 


The Idea of Representation 


T is an impressive fact that in the Federal Con- 

vention representation was considered solely as 
a substitute for legislation by direct action of the 
people. More than a hundred years earlier, Par- 
liament had been described by John Selden as a 
meeting of representatives of the people made 
necessary “because the room will not hold all.’”! 
Through successive generations of American col- 
onists the idea remained unchanged. “‘What is the 
principle of representation?” said William Pater- 
son at Philadelphia. “It is an expedient by which 
an assembly of certain individuals chosen by the 
people is substituted in place of the inconvenient 


1Table Talk, (ed. Reynolds), p. 46. A theory of Parliament as a repre- 
sentative body was given by Sir Thomas Smith in the reign of Elizabeth. 
In his book, De Republica Anglorum (1583), he said of Parliament: ‘‘For 
every Englishman is intended to be there present, either in person or by 
procuration and attorneys, of whatever pre-eminence, state, dignity or 
quality soever he be, from the prince, be he King or Queen, to the 
lowest person of England. And the consent of Parliament is taken to 
be every man’s consent.” Book II, chap. 1. But it would seem that 
Smith regarded Parliament as a court rather than a legislative assem- 
bly. C. H. Mcllwain, High Court of Parliament and Its Supremacy, 


pp. 124 ff. 
| 39 | 


DEMOCRACY AND REPRESENTATION 


meeting of the people themselves.”? James Wilson 
“‘was of the opinion that the national legislative 
powers ought to flow immediately from the peo- 
ple, so as to contain all their understanding, and 
be an exact transcript of their minds.’’* This the- 
ory emphasizes the notion that representation is 
designed to secure in the government a reflex of 
the opinion of the entire electorate rather than to 
generate an organ of control over the government. 

Before we can accept the idea that the legisla- 
ture can be a “‘transcript of the whole society,” we 
must admit that the principle of representation is 
consistent with popular government. Exactly a 
quarter of a century before the Philadelphia Con- 
vention, the French philosopher Rousseau denied 
that the sovereignty which vests in the people 
could be represented any more than it could be 
alienated.‘ In his view, there could be no law 
which the people in person had not ratified. But 
Rousseau was himself unable to extend his theory 
beyond the confines of a city-state, ““where every- 
one hastens to the assemblies.”’ In a modern state 
of large area such perpetual referenda to the peo- 


*Farrand, I, p. 561 
Sibid., p. 141 
4 Social Contract, Book II, xv 


| 40 | 


THE IDEA OF REPRESENTATION 


ple are impracticable. It therefore follows that 
popular sovereignty implies representation. 

It was not until the appearance of the Encyclo- 
pedia article on “Government” by James Mill in 
1820 that the representative system was reflected 
in political theory. By that date the divergence 
between English and American political develop- 
ment was well defined. Under the leadership of 
John Marshall; the Supreme Court of the United 
States was asserting the scope and limits of the 
powers vested in the different departments of the 
government, by the exercise of which they were 
to check each other. But the doctrine of Mill was 
that the community itself must check those indi- 
viduals entrusted with the conduct of govern- 
ment; else they will follow their own interest and 
produce bad government. Since the community 
can act only when assembled, and when assem- 
bled it is incapable of acting, it must choose rep- 
resentatives. The representative assembly must 
therefore be the checking body, and must not 
only have an identity of interest with the com- 
munity but must also have a degree of power 
sufficient for the business of checking. The ideas 
of Mill had little significance in the United 
States; he was arguing for a theory of representa- 


[ 41 ] 


DEMOCRACY AND REPRESENTATION 


tive institutions with which Americans were not 
yet acquainted. 

The Constitution of the United States was es- 
tablished on a theory of checks and balances 
which precluded the existence of any single de- 
partment of government as a checking body. The 
people through the clauses of the Constitution 
assigned to each department specific powers and 
fixed the limits within which they were to be 
exercised. The powers thus granted, though lim- 
ited to specific objects, are plenary as to those 
objects. As one writer has said: “The checks and 
balances of the Constitution were regarded, not 
as restraints upon the government itself, but as 
restraints upon the classes who would have pos- 
session of the government, to keep them from 
abusing their trusts for individual advantage.’” 
The desire was not to enable the people to control 
the government, but to enable the government to 
control the people. “In framing a government 
which is to be administered by men over men,” 
said Madison, “the great difficulty lies in this: 
you must first enable the government to control 
the governed, and in the next place, oblige it to 
control itself.’’ 


5H. J. Ford, Rise and Growth of American Politics, p. 60 
6 Federalist, No. 51 
[ 42 ] 


THE IDEA OF REPRESENTATION 


The constitution-makers with historic prece- 
dent immediately behind them provided that all 
bills for raising revenue should originate in the 
popular house of the national legislature. This 
control of the purse was intended as a resource in 
the hands of the representatives of the people to 
compel the government to accomplish its just 
purposes. In the Federalist it was claimed that 
“this power over the purse may, in fact, be re- 
garded as the most complete weapon with which 
any constitution can arm the immediate repre- 
sentatives of the people, for obtaining a redress 
of every grievance, and for carrying into effect 
every just and salutary measure.’ But in the 
sentence granting this power, the Constitution 
states that “the Senate may propose or concur 
with amendments as on other bills.’’ The result 
has been that the Senate has steadily gained in 
its influence over revenue legislation until it now 
frankly assumes, under its power to make amend- 
ments, what is for practical purposes the right of 
initiating revenue measures. Whatever may be 
the theory held today regarding the Senate, that 
body was not originally formed on the principles 
of popular representation. 
7™No. 58 


[ 43 ] 


DEMOCRACY AND REPRESENTATION 


The system of checks and balances also in- 
volved the doctrine of the separation of powers 
which denied any cooperation of executive and 
legislature in the construction of legislation. At 
the moment when political practice in England 
was disregarding the separation of the legislative 
and executive departments, the doctrine was up- 
held by the framers of the United States Consti- 
tution in the belief that they were imitating what 
they regarded as cardinal principles in the English 
system. The fact that the Prime Minister had be- 
come the real executive was perceived clearly 
enough in the Convention of 1787. But the idea 
still prevailed on both sides of the Atlantic that 
it was the business of the King to govern the 
country. This “interception of royal duty by min- 
isterial combinations, based upon parliamentary 
interest, was regarded as an aberration from the 
principles of the English constitution and as the 
chief source of political corruption.’’® In other 
words, the rise of the cabinet system was not yet 
reflected in political philosophy. 

It must not be forgotten that John Francis 
Mercer argued in the convention for the creation 
of a cabinet. “The legislature,” he said, “must 
8Ford, p. 276 


[ 44 ] 


THE IDEA OF REPRESENTATION 


and will be composed of wealth and abilities, and 
the people will be governed by a junto. The exec- 
utive ought to have a council, being members of 
both houses. Without such an influence, the war 
will be between the aristocracy and the people. 
He wished it to be between the aristocracy and 
the executive. Nothing else can protect the peo- 
ple against those speculating legislatures which 
are now plundering them throughout the United 
States.”® This brought from Elbridge Gerry the 
retort that “according to the idea of Mr. Mercer 
our government it seems is to be a government of 
plunder. In that case it certainly would be pru- 
dent to have but one rather than many to be em- 
ployed in it.” But the convention had already 
agreed, before the arrival of Mercer at Philadel- 
phia, that it was essential to the principle of the 
separation of powers that the whole executive 
power should be vested in the President. “The 
President should be authorized to call or not for 
advice as he might choose,” was the thoughtful 
conclusion of Charles Pinckney. “Give him an 
able council and it will thwart him; a weak one 


and he will shelter himself under their sanction.” 


°Farrand, II, p. 284 
Wibid., p. 285 
U¢bid., p. 329 


[ 45 | 


DEMOCRACY AND REPRESENTATION 


Indeed, the principle of the separation of legisla- 
tive and executive functions continued to be re- 
garded as so fundamental throughout the forma- 
tive period of American political institutions that 
every deviation, no matter how slight, was dis- 
couraged. 

At the first session of Congress, in the bill to 
create a Treasury Department, it was intended 
that the Secretary should have access to the 
House of Representatives “‘to report plans for the 
improvement and management of the revenue, 
and the support of the public credit.”? The meas- 
ure was drawn not merely upon the lines, but al- 
most in the exact language of the act creating the 
Superintendent of Finance under the Articles of 
Confederation. In that position Robert Morris 
had frequently appeared in the Congress and had 
enjoyed an intimate acquaintance with its pro- 
ceedings. But the proposal to give to the Secre- 
tary of the Treasury the same direct and familiar 
access to the Congress under the Constitution 
was met by the objection that this “would be a 
dangerous innovation upon the constitutional 
privilege” of the House of Representatives. The 
old Congress, it was agreed, could safely allow the 
2 Annals of the First Congress, I, pp. 616 ff. 


[ 46] 


THE IDEA OF REPRESENTATION 


Superintendent of Finance to appear before them, 
“because they possessed the legislative and exec- 
utive power; they could abolish his plans and his 
office together, if they thought proper.” But 
under the Constitution the Congress would have 
no control over the head of an executive depart- 
ment, therefore they “ought to be cautious of 
putting dangerous powers into his hands.” More- 
* over, “all the information that can be required, 
may be called for, without adopting any clause 
that may undermine the authority of this House, 
and the security of the people. The Constitution 
has pointed out the proper method of communi- 
cation between executive and legislative depart- 
ments; it is the duty of the President to give, 
from time to time, information to Congress of the 
state of the Union, and to recommend to their 
consideration such measures as he shall judge 
necessary and expedient. If revenue plans are to 
be prepared and reported to Congress, here is the 
proper person to do it; he is responsible to the 
people for what he recommends, and will be more 
cautious than any other person to whom a less 
degree of responsibility is attached.’’ The jeal- 
ousies which were thus aroused produced a deter- 
mination to exclude the heads of the departments 


[ 47 | 


DEMOCRACY AND REPRESENTATION 


from the House of Representatives and the op- 
portunity to establish this branch as an organ of 
control was rejected. 

The representative body was not conceived to 
be an agency for the control of the government; 
it was to be a part of the government itself. 
Powers were granted to Congress which were to 
be exercised subject to no limitations, except 
those contained in the Constitution. As “‘a sub- 
stitute for a meeting of the citizens in person,” 
Congress was expected to perform its functions in 
the same spirit, if not in the same manner, as an 
assembly of the people. 

This conception of the representative body 
sprang from the notion of the state as a compact. 
In his lectures before the law students of the Uni- 
versity of Pennsylvania in 1790, James Wilson 
said: “In free states the people form an artificial 
person or body politic, the highest and noblest 
that can be known. They form a moral person 

. as a complete body of free natural persons, 
united together for their common benefit; as hav- 
ing an understanding and a will; as deliberating 
and resolving and acting; as possessed of inter- 
ests which it ought to manage; as enjoying rights 


[ 48 ] 


THE IDEA OF REPRESENTATION 


which it ought to maintain; and as lying under 
obligations which it ought to perform. To this 
moral person, we assign, by way of eminence, the 
dignified appellation of state. . . . The constitu- 
tion of the United States and that of Pennsyl- 
vania rest solely, and in all their parts, on the 
great democratical principle of a representation 
of the people; in other words, of the moral person, 
known by the name of the state.’ Thomas 
Hobbes in the seventeenth century had a similar 
conception of the unity of the multitude in one 
person. But Wilson departed from the theory of 
the Englishman in considering sovereignty as 
continuing to be vested in the people, who dele- 
gate specific powers to the government. “‘Repre- 
sentation,” said Wilson, “‘is the chain of com- 
munication between the people and those to 
whom they have committed the exercise of the 
powers of government.’ 

The idea that the representative body will be 
a miniature of the electorate has the merit of 
simplicity. But it fails to achieve reality because 
the representatives are not always able or willing 


3 Lectures on Law. Works, II, pp. 120-3. It is probable that some of 
the lectures were not delivered, but they indicate clearly enough the 
more mature ideas of Wilson on political philosophy 

Mibid., p. 124 


[ 49 | 


DEMOCRACY AND REPRESENTATION 


to reflect the opinions of their constituents. Any 
system of representative government depends in 
large measure for its success upon the men en- 
trusted with its conduct. “‘It is a mistake,” said 
Mercer of Maryland in the Federal Convention, 
“to suppose that the paper we are to propose will 
govern the United States. It is the men whom it 
will bring into the government and interest in 
maintaining it that is to govern them. The paper 
will only mark out the mode and the form. Men 
are the substance and must do the business.’ 

The State governments had already been es- 
_ tablished upon the idea that the representatives 
in the legislatures would reflect accurately the 
sentiments of the electorate. Yet there was almost 
universal complaint that “the State legislatures 
drawn immediately from the people did not al- 
ways possess their confidence.’ Gouverneur Mor- 
ris warned the delegates assembled at Philadel- 
phia that “the legislature is worthy of unbounded 
confidence in some respects, and liable to equal 
distrust in others. When their interest coincides 
with that of their constituents, as happens in 
many of their acts, no abuse of trust is to be ap- 
prehended. When a strong personal interest hap- 
6 Farrand, II, p. 289 


[ 50 ] 


THE IDEA OF REPRESENTATION 


pens to be opposed to the greatest interest, the 
legislature cannot be too much distrusted.’’! 

_ The danger to be guarded against was the 
growth in the representative body of what 
Bentham once defined as sinister interests. Inter- 
ests adverse to those of the whole community had 
already reduced the government in some of the 
States toa condition of turbulence and anarchy. 
In the constitutional convention, James Wilson 
called attention to the fact that in these States 
“the legislatures are actuated not merely by the 
sentiment of the people, but have an official sen- 
timent opposed to that of the general govern- 
ment and perhaps to that of the people them- 
selves.’’!7 Paper money legislation and stay laws 
enacted in the State legislatures indicated a solici- 
tude for the debtor classes which was adverse to 
the general welfare. 

Recognition of the danger did not, however, 
produce a remedy. Here the convention entered 
upon the realm of the impalpable. “With regard 
to the sentiments of the people,” at the time of 
the convention, James Wilson “‘conceived it diffi- 
cult to know precisely what they are. Those of 


6 ibid., p. 104 
17ibid., I, p. 358 


[ 51 | 


DEMOCRACY AND REPRESENTATION 


the particular circle in which one moved were 
commonly mistaken for the general voice.”?® 
Madison “‘observed that if the opinions of the 
people were to be our guide, it would be difficult 
to say what course we ought to take. No member 
of the convention could say what the opinions of 
his constituents were at this time; much less could 
he say what they would think if possessed of the 
information and lights possessed by the members 
here; and still less what would be their way of 
thinking six or twelve months hence.’’!® If subse- 
quent experience has proved anything, it is that 
the doubts which assailed the men of 1787 have 
become permanently fixed in American political 
speculation. No one can pretend today that the 
interests of the representative assembly are al- 
ways in harmony with those of the electorate or 
that the power supposedly delegated by the peo- 
ple is not frequently perverted to vicious ends. 
The only provision inserted in the Constitution 
for maintaining a proper responsibility of the 
representative to his constituents was that of fre- 
quent elections. “The House of Representatives,” 
wrote the authors of the Federalist, “is so consti- 


18Farrand, I, p. 253 
9¢bid., p. 215 


[ 52 | 


THE IDEA OF REPRESENTATION 


tuted as to support in the members an habitual 
recollection of their dependence on the people. 
Before the sentiments impressed on their minds 
by the mode of their elevation can be effaced by 
the exercise of power, they will be compelled to 
anticipate the moment when their power is to 
cease, when their exercise of it is to be reviewed, 
and when they must descend to the level from 
which they were raised; there to remain forever 
unless a faithful discharge of their trust shall have 
established their title to a renewal of it.’’?° This 
argument seems almost specious in view of the 
fact that most of the State legislatures, which 
were so generally condemned in the Federal Con- 
vention, were chosen by annual elections. Indeed, 
Hamilton suggested that “frequency of elections 
tended to make the people listless to them; and to 
facilitate little cabals.’’! 

Notwithstanding the unqualified approbation 
in the convention of the idea of representation 
which aims to secure in the government a reflex 
of public opinion, the framers of the Constitution 
were unable to adapt the theory to the exigencies 
of the situation which confronted them. ‘The 


20No. 57 
*1Farrand, I, p. 362 


[ 53 | 


DEMOCRACY AND REPRESENTATION 


doctrine of representation,” said James Wilson 
early in the debates, “is this—first the represen- 
tative ought to speak the language of his consti- 
tuents, and secondly that his language or vote 
should have the same influence as though the 
constituents gave it.”’” This interpretation, which 
is the only one consistent with the idea of repre- 
sentation as a substitute for direct action by the 
people, demands the apportionment of represen- 
tatives on a basis of population. But the assent of 
the delegates from the smaller States could not be 
obtained to any practical arrangements which did 
not secure in at least one branch of the legislature 
the equal representation of the States. 

Under the leadership of William Paterson a 
compromise was forced upon the convention 
whereby the States secured an equal representa- 
tion in the Senate while the members of the House 
of Representatives were to be apportioned ac- 
cording to population. This was in effect a repudi- 
ation of Paterson’s own principle of representa- 
tion. “Mr. Madison reminded Mr. Paterson that 
his doctrine of representation, which was in its 
principle the genuine one, must forever silence 
the pretensions of the small States to an equality 
Farrand, I, p. 185 


[ 54 | 


THE IDEA OF REPRESENTATION 


of votes with the large ones. They ought to vote 
in the same proportion in which their citizens 
would do, if the people of all the States were col- 
lectively met.’’?* Nevertheless the delegates from 
the small States were determined to secure pro- 
tection for their interests regardless of the prin- 
ciples that might have to be sacrificed. 
Undoubtedly the Constitution would never 
have been accepted by the small States without 
this compromise. But it introduced at once into 
the government of the United States the great 
sinister interest of States’ rights, which has since 
remained an obstacle to the development of a 
national sentiment which could be reflected in 
Congress. “The State systems,’’ wrote Henry 
Knox to Rufus King in the summer of 1787, “‘are 
the accursed things which will prevent our being 
a nation. The democracy might be managed, nay, 
it would be a remedy itself after being sufficiently 
fermented; but the vile State governments are 
sources of pollution, which will contaminate the 
American name for ages—machines that must 
produce ill, but cannot produce good.’’** Because 
the States have been so firmly entrenched behind 


3 ibid., p. 562 
24 Life and Correspondence of Rufus King, I, p. 228 


[ 55 | 


DEMOCRACY AND REPRESENTATION 


the Constitution, the American people have never 
been able again to attain the political solidarity 
they once displayed so consp cue aS in the Dec- 
laration of Independence. 

The explanation for the constitutional position 
of the Senate was that it would not only be a check 
upon the hasty deliberations of the lower house 
but would also provide representation for the 
sovereignty of the States. “The sense of the 
States,” it was argued, ought to be collected, not 
only to allow these entities to maintain their in- 
tegrity but also to bring them to the support of 
the national government. John Dickinson “com- 
pared the proposed national system to the solar 
system, in which the States were the planets, and 
ought to be left to move freely in their orbits.” 
In order to secure the sovereignty of the States, 
he thought “the State legislatures ought to have 
some means of defending themselves against the 
encroachments of the national government.” 

In the effort to reflect in Congress the opinion 
of the State governments, as well as that of the 
people, it became necessary to modify the con- 
ception of the relation of the representative to his 
constituents. In the minds of the men of 1787, 
* Farrand, I, p. 153 


| 56 | 


THE IDEA OF REPRESENTATION 


members of Congress were not to be simply the 
delegates of the people; for the purposes of gov- 
ernment they were to be the people themselves. 
They were to be guided by “the deliberate sense 
of the community,” but this was not to “require 
an unqualified complaisance to every sudden 
breeze of passion, or to every transient impulse 
which the people may receive from the arts of 
men, who flatter their prejudices to betray their 
interests.’’?* This is, in effect, to reject the con- 
ception of a restricted mandate which Burke had 
already condemned and which in a later day was 
to be excoriated by the younger Mill. 

But senators were deemed to be “in quality of 
ambassadors of the States.’?7 It was therefore 
considered entirely appropriate that they should 
receive instructions from the State legislatures 
which elected them. In 1788 the selection of 
Madison as senator from Virginia was success- 
fully opposed by Patrick Henry on the ground 
that it was “‘doubted whether Mr. Madison will 
obey his instructions,”?* and thereafter the State 


26 Federalist, No. 71. See also the debates in the first session of Congress 
on the proposal to amend the Constitution to permit the people “‘to 
instruct their representatives.” Annals of the First Congress, I, pp. 761 ff. 

27 Elliot, Debates, II, pp. 18, 46, 145; IV, pp. 123, 207 

28M. Conway, Life and Letters of Edmund Randolph, pp. 120-1 


[ 57 | 


DEMOCRACY AND REPRESENTATION 


legislatures very freely instructed their senators, 
in some cases demanding the resignations of 
those who refused compliance.?? It was not until 
the Whig party, which opposed the “doctrine of 
instructions,” came into power that the practice 
fell into disuse. 

In the course of American political develop- 
ment particularist sentiment has penetrated Con- 
gress to such an extent that an accurate reflection 
of public opinion throughout the country is im- 
possible. Members of the House of Representa- 
tives, in order to assure themselves of re-election, 
are so intent upon gratifying the demands of the 
peculiar interests of their districts that they have 
been reduced from the position of legislators for 
the entire nation to that of “‘ambassadors of local 
interests.” Every session of Congress presents a 
spectacle of that “confused and scuffing bustle of 
local agency” against which Burke gave warning 
if representatives were not permitted to act upon 
a very enlarged view of things. ‘Our representa- 


29For examples of instructions by State legislatures, see T. H. Benton, 
Abridgment of Debates in Congress, XII, pp. 578-9; XIII, p. 154. 
H. Niles, Register, XI, p. 407; XLVII, p. 317; LVI, p. 99; LVII, pp. 208, 
308; LXIII, p. 247; LXV, pp. 381, 397. Congressional Globe, 28th Cong., 
1 Sess., XIII, p. 250. Senate Journal, 33rd Cong., 1 Sess., p. 478. zbid., 
35th Cong., 1 Sess., p. 402 


| 58 | 


THE IDEA OF REPRESENTATION 


tives at Washington now are occupied with the 
division of the spoils of office, the procuring of 
appropriations for their districts or even appro- 
priations and favors for certain persons and in- 
terests therein, and in ‘building their fences’ gen- 
erally rather than studying the welfare of the en- 
tire United States.’’?° 

But it is in the Senate that the evils of local 
sentiment and special interests have become most 
pernicious. The member of the lower House 
whose constituents expect him to get for them a 
bit of “pork” finds that each of his colleagues has 
constituents who entertain similar expectations. 
The people of no State and no section of the coun- 
try have a monopoly of human greed; that is 
rather evenly diffused throughout the entire 
United States. As long as there are voters who 
act upon the belief that “Uncle Sam is rich enough 
to buy us all a farm,” selfish legislation may be 
expected, whether it takes the form of useless ap- 
propriations for the improvement of rivers and 
harbors or a bonus for able-bodied veterans of the 
World War. Such measures indicate a low stand- 
ard of public morals for which the only remedy is 
to be found in a more widespread education of the 
80W.S. Myers, American Democracy Today, p. 86 


[ 59 | 


DEMOCRACY AND REPRESENTATION 


electorate. In the Senate, however, the system of 
representation encourages the formation of agri- 
cultural and other “blocs,” which negative ma- 
jority rule and foster class legislation wholly in- 
consistent with the spirit of democracy. 

As a result of the equal representation of 
States in the Senate, there are at present eighteen 
States, electing thirty-six senators, the total pop- 
ulation of which is less than that of the State of 
New York and only slightly larger than the popu- 
lation of Pennsylvania. If the principle that “the 
majority of people wherever found ought in all 
questions to govern the minority” should be 
adopted, the twenty-two States west of the Mis- 
sissipp1 River would be obliged to submit to a re- 
duction of forty per cent in their representation 
in the upper House of Congress. The senators 
from the six States in the Northwest who have 
been most conspicuous in the “agricultural bloc”’ 
represent only ten millions of people while the sen- 
ators from the six New England States from whom 
the ascendency in Congress has been wrested, 
have only about seven million constituents. 

The States which are over-represented in the 
Senate offer easy opportunities for the radical 
and the demagogue to intermeddle with the en- 


| 60 | 


THE IDEA OF REPRESENTATION 


actment of legislation. It is unnecessary for spe- 
cial interests to align themselves with a political 
party when they may control the government by 
dictating the votes of a handful of senators. Class 
legislation has thus been enacted by men who 
openly seek and receive the support of voters 
under the label of one or the other of the two 
great political parties. The Grand Army of the 
Republic never required the formation of a politi- 
cal party, since its members were so distributed 
throughout the States that it could always make 
its influence felt in senatorial elections. The Ameri- 
can Federation of Labor appears to have appre- 
ciated and made use of the tactics of the veterans 
of the Civil War, and the American Legion may 
be expected to inherit the same tradition. 

The diminished prestige of popular assemblies 
is a world-wide characteristic of the representa- 
tive system. But in the United States the decline 
of Congress as “the nation’s Committee of Griev- 
ances and its Congress of Opinions” has wit- 
nessed a corresponding increase in the represen- 
tative character of the presidency. The principle 
of representation was from the beginning thought 
to extend to the executive as well as the other de- 
partments of government. A great advantage 


[ 61 | 


DEMOCRACY AND REPRESENTATION 


was claimed over England in that the Constitu- 
tion of the United States extended the theory and 
practice of representation through the entire po- 
litical structure, whereas in the former country it 
was limited to one branch of the legislature. ““The 
President of the United States will be himself the 
representative of the people,” said Hamilton in 
the New York convention. “From the competi- 
tion which ever subsists between the branches of 
the government, the President will be induced to 
protect their rights, whenever they are invaded 
by either branch.”*! 

The idea that the President as the representa- 
tive of the people would carry on the administra- 
tion was familiar enough in 1787. “Our President 
will be the British Minister,”’ said Gouverneur 
Morris. It was necessary to surround him with 
adequate safeguards against domination by the 
legislature. ‘“The preservation of republican gov- 
ernment,” declared Madison, “therefore required 
some expedient for the purpose, but required evi- 
dently at the same time that in devising it, the 
genuine principles of that form should be kept in 
view.” According to Gouverneur Morris, “the 
one great object of the executive is to control the 
31Works, il, p. 21 


| 62 | 


THE IDEA OF REPRESENTATION 


legislature. The legislature will continually seek 
to aggrandize and perpetuate themselves; and 
will seize those critical moments produced by 
war, invasion or convulsion for that purpose. It 
is necessary then that the executive magistrate 
should be the guardian of the people, even of the 
lower classes, against the great and wealthy who 
in the course of things will necessarily compose 
the legislative body. . . . The check provided in 
the second branch was not meant as a check on 
legislative usurpations of power, but on the abuse 
of lawful powers, on the propensity of the first 
branch to legislate too much to run into projects 
of paper money and similar expedients. It is no 
check on legislative tyranny. On the contrary, it 
may favor it; and if the first branch may be se- 
duced, may find the means of its success. The ex- 
ecutive therefore ought to beso constituted as to be 
the great protector of the mass of the people.” 
With this reasoning Madison agreed, asserting 
that “if it be a fundamental principle of free gov- 
ernment that the legislative, executive and judici- 
ary powers should be separately exercised, it is 
equally so that they be independently exercised.”* 


® Farrand, IJ, p. 52 
87bid., p. 56 


[| 63 | 


DEMOCRACY AND REPRESENTATION 


Nevertheless the independence of the executive 
and legislative departments of government was 
not intended to establish the President as a dicta- 
tor over Congress. The possession of the veto and 
the power to recommend to Congress such meas- 
ures as he shall judge necessary and expedient 
were for the protection of the constitutional posi- 
tion of the executive. The rise of the President to 
a position where he may engage in the competi- 
tion with the other branches of the government 
which Hamilton predicted would take place is 
wholly adventitious. 

Circumstances wholly unforeseen by the fram- 
ers of the Constitution have conspired to elevate 
the office of President. With the growth of the 
party system the President has come to be re- 
garded as the head of his party. After his nomina- 
tion by the convention he is expected to repre- 
sent the party before public opinion, and to stand 
before the country as the exponent of the pur- 
poses and principles of the party. Above all he is 
expected to achieve the victory for himself and his 
party ticket at theelection. From themoment when 
the machinery of the electoral college passed under 
the control of a system of popular election, the 
presidency acquired a direct popular character. 


[ 64 ] 


THE IDEA OF REPRESENTATION 


The idea of executive stewardship which under- 
lies the newer conception of the presidency recalls 
the notion of a “patriot king” at the head of a 
dominant party which Bolingbroke advanced in 
the eighteenth century. The theory found its 
ablest apologist in President Roosevelt, who in- 
sisted that “‘the executive power was limited only 
by specific restrictions and prohibitions appear- 
ing in the Constitution or imposed by Congress 
under its constitutional powers.”’ In explanation 
of the principles which guided him throughout 
his administration of the presidency, Mr. Roose- 
velt said: “My view was that every executive 
officer, and above all every executive officer in 
high position, was a steward of the people bound 
actively and affirmatively to do all he could for 
the people, and not to content himself with the 
negative merit of keeping his talents undamaged 
in a napkin. I declined to adopt the view that 
what was imperatively necessary for the nation 
could not be done by the President unless he 
could find some specific authorization to do it. 
My belief was that it was not only his right but 
his duty to do anything that the needs of the 
nation demanded unless such action was forbid- 
den by the Constitution or by the laws. Under 


| 65 | 


DEMOCRACY AND REPRESENTATION 


this interpretation of executive power I did and 
caused to be done many things not previously 
done by the President and the heads of the de- 
partments. I did not usurp powers, but I did 
greatly broaden the use of executive power. In 
other words, I acted for the public welfare, I 
acted for the common well-being of all our people, 
whenever and in whatever manner was necessary, 
unless prevented by direct constitutional or legis- 
lative prohibition.”*4 

Undoubtedly the great mass of the people gave 
Mr. Roosevelt their support, but the dangers 
which attend the exercise of a theory that the 
President “‘is to play the part of a universal prov- 
idence and set all things right, and that anything 
that in his judgment will help the people he ought 
to do, unless he is expressly forbidden not to do 
it,’ have been pointed out by his successor in the 
White House. At the same time Mr. Taft found 
that his own theory of the presidency was un- 
workable. He believed “‘that the President can 
exercise no power which cannot be fairly and 
reasonably traced to some specific grant of power 
or justly implied and included within such ex- 
press grant as proper and necessary to its exer- 
4 Autobiography, pp. 371-2 


[ 66 | 


THE IDEA OF REPRESENTATION 


cise. Such specific grant must be either in the 
Federal Constitution or in an act of Congress 
passed in pursuance thereof. There is no unde- 
fined residuum of power which he can exercise be- 
cause it seems to him to be in the public interest. 

. 35 But when he was confronted with a seri- 
ous upheaval within the membership of his own 
party in the House of Representatives in 1910, 
Mr. Taft was unable to provide the leadership 
necessary to maintain party solidarity. He failed 
not only to keep faith with the people by bringing 
about the enactment into legislation of the party 
pledges of 1908 but also allowed the control of his 
partisans in Congress to slip from his hands. His 
decisive defeat in the election of 1912 was indica- 
tion that the people expect in the President a 
leader who can at least compel the members of 
his own party in Congress to adhere to their plat- 
form promises. 

While the President is expected to assume the 
leadership of Congress, it is clear that he cannot 
set his will in opposition to that of a majority of 
the people. Woodrow Wilson came to the presi- 
dency with a theory of the functions of the execu- 
tive not essentially different from that of Mr. 
3 W.H. Taft, Our Chief Magistrate and His Powers, pp. 140-1 


[ 67 | 


DEMOCRACY AND REPRESENTATION 


Roosevelt.*° He had behind him a majority of his 
own party in both Houses of Congress when he 
first put his theory into practice. It is true that 
many members, especially in the lower House, 
were inexperienced and looked to the President 
for guidance. But there were sinister interests 
both in and outside of Congress which Mr. Wil- 
son had to combat. Throughout his first adminis- 
tration he skilfully held the leaders in Congress to 
the important matters of legislation to which the 
Democratic party had given its pledge in the 
campaign. In matters of foreign policy he fol- 
lowed the currents of popular opinion so closely 
that he was able to appear before the govern- 
ments of Europe, as well as the Congress of the 
United States, as the spokesman of a united peo- 
ple. For almost six years Mr. Wilson ably repre- 
sented not only the controlling ideals and princi- 
ples of his party but also the political sentiment 
of a majority of the American people. It was not 
until he attempted to dictate to the people them- 
sleves in the congressional elections of 1918 and 
sought at Paris to commit the United States to a 
treaty of peace which did not accord with the 
traditional foreign policy of the nation that he 
3% Wilson, Constitutional Government in the United States, pp. 60, 67-8, 79 


| 68 | 


THE IDEA OF REPRESENTATION 


lost the support of public opinion. Without the 
backing of the people, his position as leader be- 
came untenable and he soon met defeat at the 
hands of Congress. 

The growth of executive power in the United 
States recalls the fears of an elective monarchy 
which excited some of the members of the Fed- 
eral Convention.*’ Roger Sherman, in debating 
the veto power of the President, “was against 
enabling any one man to stop the will of the 
whole. No one man could be found so far above 
the rest in wisdom. He thought we ought to avail 
ourselves of his wisdom in revising the laws, but 
not permit him to overrule the decided and cool 
opinions of the legislature.”** But the truth is 
that the President has emerged as the representa- 
tive of the people as a whole because the legisla- 
ture does not reflect “the will of the whole.’ En- 
gaged in the rivalry of purely local concerns, the 
representatives of the people in Congress have 
lost a proper perspective with regard to matters 
of general policy. The President remains as the 
only available exponent of the general sentiment. 
That is not to say that he enjoys arbitrary power, 


37Dunbar, Monarchical Tendencies in the United States, pp. 79 ff. 
38 Farrand, I, p. 99 


[ 69 | 


DEMOCRACY AND REPRESENTATION 


“for he is constantly under the check of public 
‘criticism and the common sentiment, which he 
ignores at his peril.’’ His assumption of leadership 
instead of marking the decline of the national 
government toward despotism is in fact “only a 
phase of the tendency toward a greater measure 
of direct popular control.’’* 

The situation created by this development is 
one of divided representation. It is assumed quite 
frankly that the representative assembly is in- 
sufficient in itself to reflect the opinion of the 
nation, which demands that the issues shall be 
defined by someone in a position to act upon an 
enlarged view of things. At the same time there 
has been no movement toward making the Presi- 
dent responsible to Congress. This fact is cer- 
tainly a mute witness of the extraordinary degra- 
dation of legislative authority in the United States. 

Since the day of John Stuart Mill it has been 
apparent that dangers lurk in the division of rep- 
resentation, and the new governments of Europe 
have not been modelled on the American system.*° 


39See remarks of Mr. Charles Evans Hughes before the Phi Beta Kappa 
Society at Harvard University on June 30, 1910, while Mr. Hughes was 
Governor of the State of New York. Quoted in E. Stanwood, History 
of the Presidency, II, pp. 240-2 

40 McBain and Rogers, New Constitutions of Europe, Chap. II 


| 70 | 


THE IDEA OF REPRESENTATION 


Undoubtedly it seems incongruous that a democ- 
racy should bestow the executive power upon a 
single individual for a period of four years, sub- 
ject to no positive control or supervision except 
through the clumsy expedient of impeachment. 
Perhaps the scheme of popular election places 
fewer eminent men in the presidency than if the 
chief magistrate were selected by the dominant 
party in the representative assembly. It was an 
English critic of American political institutions 
who explained “‘why great men are not chosen 
Presidents.’’*! 

Nevertheless the principle of representation 
was adopted in the United States to give effect to 
the sovereignty of the people. “It is useless to call 
the sovereignty of the people effective if the or- 
gans through which it works fail to do justice to 
the popular desire.”?? The popular will has not 
been discoverable, as the framers of the Constitu- 
tion believed, through the exchange of opinions 
from the legislative districts. Experience has 
shown that “‘the sum or a combination of local 
impressions is not a wide enough base for national 
policy, and no base at all for the control of foreign 


“J. Bryce, American Commonwealth, I, Chap. VIII 
®H. J. Laski, Foundations of Sovereignty, p. 222 


Faia ea 


DEMOCRACY AND REPRESENTATION 


policy.’ The absorption of power by the execu- 
tive indicates merely that the popular will finds 
a better means of expression in the President 
than in Congress. In the process of government it 
may have been the intention of the framers of the 
Constitution that the President should “‘stand 
the mediator between the intrigues and sinister 
views of the representatives and the general liber- 
ties and interests of the people;’’*4 experience has 
shown that in the President is to be found the 
leadership essential to democracy. 


8W. Lippmann, Public Opinion, p. 288 
“t Farrand, II, p. 30 


CHAPTER III 


The Forms of Government 


HE form of government set up in the Con- 

stitution was regarded by its founders as the 
only one which was “‘reconcilable with the genius 
of the people of America,” and at the same time 
adequate to govern the large extent of territory 
within the United States. It was by them denomi- 
nated republican. According to the eighteenth 
century formula, republican government was 
compounded by engrafting representation upon 
democracy. “As long as the offices are open to all 
men,” said Hamilton, “and no constitutional 
rank is established, it is pure republicanism.””? 
This concise definition is in no way inconsistent 
with the longer and more famous one by James 
Madison,? but it does not take into account the 
evils of democracy which practical arrangements 
were expected to cure. To convert theory into 
practice it was thought necessary to guard against 
abuse of power by the partition and limitation of 


1Farrand, I, p. 432 
2 Federalist, No. 39 


Ebaa 


DEMOCRACY AND REPRESENTATION 


authority. That is to say, stability was to be 
maintained in the government through the intro- 
duction of a system of checks and balances. The 
result was to create precisely the form of govern- 
ment declared by Rousseau to be incompatible 
with the existence of liberty. 

Unlike the French philosopher, the men of 
1787 were confronted with a practical problem. 
Charles Pinckney told the constitutional conven- 
tion that “‘all we have to do is to distribute the 
powers of government in such a manner, and for 
such limited periods, as while it gives a proper 
degree of permanency to the magistrate, will re- 
"serve to the people the right of election which 
they will not or ought not frequently to part 
with.’ But the task was not so readily per- 
formed; conflicting forces had to be calculated 
and given their due weight in the political system 
under construction. 

The crucial moment in the formation of the 
Constitution came in the debate on representa- 
tion. Here the impact of the democratic spirit of 
the frontier and interior regions upon the conser- 
vatism of the seaboard was most direct. For 
thirty-one days the members of the convention 
3Farrand, I, p. 404 


[ 74 ] 


THE FORMS OF GOVERNMENT 


struggled in the stifling summer heat of Philadel- 
phia before they reached a solution of the dif_i- 
culty. As Madison said, “the great difficulty lies 
in the affair of representation; and if this could be 
adjusted, all others would be surmounted.’ In 
point of fact, the solution of this problem in- 
volved nothing less than the reconciliation of the 
American conception of democracy with efficient 
government. 

Despite the strength of the propertied classes 
in the convention, the adoption of the idea of 
representation was not conditioned upon the re- 
flection of economic or occupational interests. 
Modern systems of representation in Europe have 
in most instances evolved out of the representa- 
tion of three or more classes or estates. Frequently 
each class has not only been represented by per- 
sons of its own choice, but each class has had a 
house of its own through which the interests of 
the group were expressed in the government. 
European adaptations of the representative sys- 
tem have not sought to reflect the opinions of 
mere numerical aggregations of human beings 
considered apart from property and employment. 
On the contrary, they have reflected the senti- 
*7bid., p. 321 


[ 75 | 


DEMOCRACY AND REPRESENTATION 


ments and views of different estates or classes of 
men: clergy, nobility, landed gentry, burghers, 
and peasants.* 

If it had been suggested to the leaders of the 
Federal Convention that special provision had not 
been made for the representation of the various 
economic interests in the United States, they 
would undoubtedly have been surprised. They 
thought that the representation of economic in- 
terests was secured from the very nature of the 
government itself. James Madison, although he 
accepted the rule of numbers as the basis of rep- 
resentation, believed that class distinctions would 
penetrate the legislative assemblies. “Many of 
the most important acts of legislation,’ he 
thought, would be “but so many judicial deter- 
minations, not indeed concerning the rights of 
single persons, but concerning the rights of large 
bodies of citizens.” The different classes of legis- 
lators, he concluded, would be merely “advocates 
and parties to the causes which they determine.’”® 

Perceiving the logical justification for group 
representation, Madison argued that the inter- 
ests of no important class should be left entirely 


5C. A. Beard, Economic Basis of Politics, Chap. II 
6 Federalist, No. 10 


| 76 | 


THE FORMS OF GOVERNMENT 


to the care of other classes. “‘It was politic as well 
as just,” he said, “that the interests and rights 
of every class should be duly represented and 
understood in the public councils. It was a provi- 
sion everywhere established that the country 
should be divided into districts and representa- 
tives taken from each, in order that the legisla- 
tive assembly might equally understand and 
sympathize with the rights of the people in every 
part of the community. It was not less proper 
that every class of citizens should have an oppor- 
tunity of making their rights be felt and under- 
stood in the public councils. The three principal 
classes into which our citizens were divisible were 
the landed, the commercial, and the manufactur- 
ing. The second and third classes bear as yet a 
small proportion to the first. The proportion will 
however daily increase. We see in the populous 
countries in Europe, what we shall be hereafter. 
These classes understand much less of each others 
interests and affairs than men of the same class 
inhabiting different districts. It is particularly 
requisite therefore that the interests of one or 
two of them should not be left entirely to the care 
or imparitality of the third.”’ 

7Farrand, II, p. 124 


Meo 


DEMOCRACY AND REPRESENTATION 


At the same time, Madison “could not agree 
that any substantial objection lay against fixing 
numbers for the perpetual standard of represen- 
tation.”’* He later examined the question with 
great care and concluded that “under every view 
of the subject, it seems indispensable that the 
mass of citizens should not be without a voice in 
making the laws which they are to obey, and in 
choosing the magistrates who are to administer 
them, and if the alternative be between an equal 
and uniform right of suffrage for each branch of 
the government and a confinement of the entvre 
right to a part of the citizens, it is better that 
those having the greater interest at stake, namely 
that of property and persons both, should be de- 
prived of half their share in the government than 
that those having the lesser interest, that of per- 
sonal rights only, should be deprived of the 
whole.’’? 

Hamilton, in the thirty-fifth number of the 
Federalist, thought that the interdependence of 
economic groups was so great that no distinctions 
could be made in the apportionment of represen- 
tatives. He said: “The idea of an actual represen- 


$Farrand, I, p. 585 
°abid., III, pp. 454-5 


[| 78 | 


THE FORMS OF GOVERNMENT 


tation of all classes of the people, by persons of 
each class, is altogether visionary. Unless it were 
actually provided in the Constitution, that each 
different occupation should send one or more 
members, the thing would never take place in 
practice. Mechanics and manufacturers will al- 
ways be inclined, with few exceptions, to give 
their votes to merchants, in preference to persons 
of their own professions or trades. Those discern- 
ing citizens are well aware that the mechanic and 
manufacturing arts furnish the materials of mer- 
cantile enterprise and industry. Many of them, 
indeed, are immediately connected with the oper- 
ations of commerce. They know that the mer- 
chant is their natural patron and friend; and they 
are aware, that however great the confidence they 
may justly feel in their own good sense, their in- 
terests can be more effectually promoted by the 
merchant than by themselves. They are sensible 
that their habits in life have not been such as to 
give them those acquired endowments, without 
which, in a deliberative assembly, the greatest 
natural abilities are for the most part useless; and 
that the influence and weight, and superior ac- 
quirements of the merchants render them more 
equal to a contest with any spirit which might 


[ 79 | 


DEMOCRACY AND REPRESENTATION 


happen to infuse itself into the public councils, 
unfriendly to the manufacturing and trading in- 
terests. These considerations, and many others 
that might be mentioned, prove, and experience 
confirms it, that artisans and manufacturers will 
commonly be disposed to bestow their votes upon 
merchants and those whom they recommend. We 
must therefore consider merchants as the natural 
representatives of all these classes of the com- 
munity. 

“With regard to the learned professions, little 
need be observed; they truly form no distinct in- 
terest in society, and according to their situation 
and talents, will be indiscriminately the objects 
of the confidence and choice of each other, and of 
other parts of the community. 

“Nothing remains but the landed interest; and 
this, in a political view, and particularly in rela- 
tion to taxes, I take to be perfectly united, from 
the wealthiest landlord down to the poorest ten- 
ant. No tax can be laid on land which will not 
affect the proprietor of millions of acres as well 
as the proprietor of a single acre. Every land- 
holder will therefore have a common interest to 
keep the taxes on land as low as possible; and 
common interest may always be reckoned upon 


[ 80 | 


THE FORMS OF GOVERNMENT 


as the surest bond of sympathy. But if we could 
even suppose a distinction of interest between the 
opulent landholder and the middling farmer, 
what reason is there to conclude that the first 
would stand a better chance of being deputed to 
the national legislature than the last? If we take 
fact as our guide, and look into our own senate 
and assembly, we shall find that moderate pro- 
prietors of land prevail in both; nor is this less the 
case in the senate, which consists of a smaller 
number, than in the assembly, which 1s composed 
of a greater number. Where the qualifications of 
the electors are the same, whether they have to 
choose a small or a large number, their votes will 
fall upon those in whom they have the most con- 
fidence; whether these happen to be men of large 
fortunes, or of moderate property, or of no prop- 
erty at all. 

“Tt is said to be necessary, that all classes of 
citizens should have some of their own number 
in the representative body, in order that their 
feelings and interests may be the better under- 
stood and attended to. But we have seen that 
this will never happen under any arrangement 
that leaves the votes of the people free. Where 
this is the case, the representative body, with too 


[ 81 | 


DEMOCRACY AND REPRESENTATION 


few exceptions to have any influence on the spirit 
of government, will be composed of landholders, 
merchants, and men of the learned professions.”’ 

Group representation requires stability in the 
groups to be represented. Unless these groups are 
fixed and unchangeable, constant revision of the 
basis of apportionment must be undertaken. No- 
body would pretend today that the classes men- 
tioned by Hamilton are the only ones which have 
political aspirations. But the emergence of other 
groups influential in governmental affairs tends 
to emphasize the mutability of social classes. Va- 
riations in the social structure are due to the ex- 
isting system and are not fundamental. When ag- 
riculture was the only important industry in this 
country, freehold qualifications for the suffrage 
could be indulged without serious contravention of 
the principle of democracy. But the growth of com- 
merce and manufactures introduced many new 
groups whose members held property in forms 
other than land, or in whom was vested the owner- 
ship of no property at all. The impermanence of 
social and economic groups, wisely foreseen by 
themembers of the Federal Convention, compelled 
in a later generation the removal from the State 
constitutions of all restrictions upon the suffrage. 


[ 82 | 


THE FORMS OF GOVERNMENT 


Property qualifications illustrated the maxim 
of John Jay that “those who own the country 
ought to govern it.” But the changes in social or- 
ganization revealed the fallacy of this maxim, in 
that ownership does not consist in technical title 
to property. The Massachusetts constitutional 
convention of 1820, in providing that all who paid 
a State or county tax should vote, recognized the 
transformation which was taking place in Ameri- 
can society. Even the tax-paying qualification 
was opposed at this time on the ground that it 
would shut out some of the workingmen. “It was 
all the more important,” said one delegate, “that 
workers should vote. Otherwise they would array 
themselves against the laws; mix them with the 
good part of society and you disarm them.’’!® In 
the midst of social changes it was sophistry to 
argue for the continuance of the political institu- 
tions of a bygone era. 

The rise, growth and decline of social and eco- 
nomic groups is inevitable because of the rapid 
and continuous changes which take place in the 
composition of the groups. Men and women do 
not remain in the social positions in which they 
were born nor cling through life to the same eco- 
10 Massachusetts Convention 1820, Debates, p. 253 


| 83 | 


DEMOCRACY AND REPRESENTATION 


nomic pursuits. George Mason reminded the 
members of the Philadelphia Convention that 
they “‘ought to attend to the rights of every class 
of the people. He had often wondered at the in- 
difference of the superior classes of society to this 
dictate of humanity and policy, considering that 
however affluent their circumstances, or elevated 
their situations, might be, the course of a few 
years, not only might but certainly would, dis- 
tribute their posterity throughout the lowest 
classes of society. Every selfish motive therefore, 
every family attachment, ought to recommend 
such a system of policy as would provide no less 
carefully for the rights and happiness of the low- 
est than of the highest order of citizens.” 
Most advocates of group representation fall 
into the error of ascribing to economic interests a 
preeminent position in the social process. That is 
to say, they are content to invoke as the sole 
cause of social change the economic needs of man 
and their satisfactions without consideration of 
other elements. John Stuart Mull long ago 
pointed out “how far mere physical and economic 
power is from being the whole of social power.”” 


4 Farrand, I, p. 49 
2 Representative Government, p. 84 


[ 84 | 


THE FORMS OF GOVERNMENT 


Although extremists still argue from the stand- 
point of economic determinism, the growth of 
democracy in the United States cannot be re- 
ferred in any great degree to economic influences. 
Material interests are a part of the great social 
forces which influence the destiny of man. But all 
social forces react upon the wills and thoughts of 
men and become effective in so far as they are 
embodied in human contrivances. The mind of 
man is therefore in itself a great force which may 
modify environmental factors. Among the vari- 
ous political institutions there exists the possi- 
bility of a rational choice. But if stability in the 
government is to be attained, the choice must 
rest upon those arrangements which are con- 
sistent with the permanent not the transitory in- 
terests of the people, the spiritual rather than the 
material purposes of society." 


8'There have been few proposals to introduce group representation in the 
government of the United States. Two such proposals are: W. Mac- 
Donald, A New Constitution for a New America, p. 138, and H. A. 
Overstreet, “The Government of To-Morrow,” Forum, LIV, p. 10. 
Political writers who would extend the principle of group representation 
to the United States lose sight of the important fact that the President 
cannot be made the representative of economic groups. He must be the 
representative of the entire electorate. In the cabinet system of govern- 
ment it is entirely possible to set up a ministry which shall carry on the 
work of administration and at the same time represent different eco- 
nomic groups within the state. But the Constitution of the United 
States is a standing repudiation of the principle of group representa- 


[ 85 | 


DEMOCRACY AND REPRESENTATION 


In theory the members of the Philadelphia 
Convention clung to the idea that the basis of 
representation should rest solely on the number 
of inhabitants. The departure from the principle 
in the establishment of equal representation in 
the Senate was forced by the necessity of recon- 


tion. The whole question of elections turns on that of the President. 
He can be the representative of but one party or group. 

Group representation has been given serious consideration in France. 
M. Charles Benoist, as far back as 1895, advocated the election of a 
Chamber of Deputies by voters grouped into seven classes according 
to their professions. The notion of a public sentiment he denounced as 
a great myth, and worked out a unique scheme of functional represen- 
tation combined with proportional representation whereby the various 
groups might combine to secure a voice in the government. Benoist, 
La crise de l'état moderne, de organisation du suffrage uniwersel and 
Pour la réforme électorale. A somewhat different scheme has been sug- 
gested by M. Leon Duguit of the Faculty of Law in the University of 
Bordeaux. M. Duguit argues that “if we would secure in the parliament 
the representation of all the elements of the national life, it is necessary 
to place beside the assembly elected by the people proportioned accord- 
ing to the numerical strength of the different parties, an assembly 
elected by the professional groups.” That is not to say that the repre- 
sentation is to be of the interests of small groups, but is to be “truly a 
representation of the different industrial and artistic forces which are 
effective in the country, and which are . . . elements of the highest 
importance in the national life.”’ In the lower house of the legislature 
the representation should be that of the people, while the second 
chamber should represent “‘more particularly the social groups, follow- 
ing sucha system as the art of politics shall determine for each country.” 
Duguit, Droit constitutionnel (2nd ed.), II, pp. 560, 596, 598. The 
League of Professional Representation and Regionalist Action pre- 
sented a scheme of professional representation to the Chamber of 

‘Deputies on April 29, 1915. J. Hennessy, Régions de France, pp. 229- 
30. See also Charles Brun, Le régionalisme (1911). The proposition 
was not adopted by the Chamber of Deputies in 1915; and in a more 


[ 86 | 


THE FORMS OF GOVERNMENT 


ciling conflicting interests. At the same time it 
was fully recognized that the sacrifice of princi- 
ples to a supposed interest was fraught with 
danger. 

The evil inherent in the scheme of equal repre- 
sentation was vigorously attacked by Wilson. 


recent regionalist bill prepared by the Administration Commission the 
provision for group representation has been omitted. The omission was 
caused by the failure to agree upon a principle whereby the share of 
each association in the deliberations of the regional council could be 
determined. ‘“The practical difficulties in the proper representation of 
these interests appeared so insurmountable to the Commission that it 
was unanimous in deciding that the members of the Regional Council 
should hold their powers from the whole of the electoral body.” Hen- 
nessy, Réorganisation administrate de la France, p. 160. The failure 
becomes significant in view of the fact that professional organization is 
undoubtedly the most marked characteristic of present day French 
society. 

In England the Guild Socialists under the leadership of G. D. H. 
Cole have evolved a scheme which would transform the present state. 
Asserting that “the omnicompetent state, with its omnicompetent par- 
liament, is utterly unsuited to any really democratic community, and 
must be destroyed or painlessly extinguished,’ Mr. Cole would divide 
economic and political power among a number of independent func- 
tional associations. His idea of the essentials of democratic representa- 
tion are, ‘‘first, that the represented shall have free choice of, constant 
contact with, and considerable control over, his representative. The 
second is that he should be called upon, not to choose some one to rep- 
resent him as a man or as a citizen in all the aspects of citizenship, but 
only to choose some one to represent his point of view in relation to 
some particular purpose or group of purposes, in other words, some 
particular funcizon. All true and democratic representation is therefore 
functional representation.’ In order to bring the political system into 
harmony with the functional principle, it is necessary to divest the 
state of control over economic, religious and other activities which do 
not affect all members of society to the same extent and in the same 


| 87 | 


DEMOCRACY AND REPRESENTATION 


“The rule of suffrage,” he said, “ought on every 
principle to be the same in the second branch as 
in the first branch. If the government be not laid 
on this foundation, it can be neither solid nor 
lasting. Any other principle will be local, con- 
fined and temporary. . . . “ If equality in the 
second branch was an error that time would cor- 
rect, he should be less anxious to exclude it, being 
sensible that perfection was unattainable in any 
plan; but being a fundamental and a perpetual 
error, it ought by all means to be avoided. A vice 
in the representation, like an error in the first 


way. Only very general functions would be allocated to a body repre- 
senting society as a whole. All other functions would be distributed 
among the guilds, each of which includes only those persons who stand 
in peculiar relationship to the service or interest which is the exclusive 
concern of the guild. The state is thus brought down to a level with the 
other associations. Cole, Guild Socialism. See also Niles Carpenter, 
Guild Socialism (1922). 

The framers of the constitution for the new German Republic have 
recognized the principle of group representation to a limited extent in 
the establishment of the Economic Council. “Before proposing drafts 
of politico-social and politico-economic bills of fundamental impor- 
tance,” the Ministry must submit them to this council for considera- 
tion. Moreover, the council may itself propose bills and may submit 
them to and defend them before the Reichstag even over the protest 
of the Ministry. Although the Economic Council has only advisory 
powers it may grow in public confidence and esteem until it exerts a 
real influence in the government. R. Brunet, The New German Consti- 
tution, pp. 80 ff. McBain and Rogers, The New Constitutions of Europe, | 
p- 122 

Farrand, I, p. 483 


[ 88 | 


THE FORMS OF GOVERNMENT 


concoction, must be followed by disease, convul- 
sions, and death itself.’ Selfish particularism is 
an ill which seldom finds a cure unless adminis- 
tered by a despot. 

Gouverneur Morris was even more vehement 
in denouncing the danger threatened by the pro- 
tagonists of equal representation. “Good God, 
Sir,” he cried, “‘is it possible they can so delude 
themselves. . . . It had been said that the new 
government would be partly national, partly fed- 
eral; that it ought in the first quality to protect 
individuals; in the second, the States. But in 
what quality was it to protect the aggregate in- 
terest of the whole?” Morris begged the conven- 
tion to look at Germany. ““The same circum- 
stances,” he declared, “‘which unite the people 
here, unite them in Germany. They have there a 
common language, a common law, common 
usages and manners, and a common interest in 
being united; yet their local jurisdictions destroy 
every tie. The case was the same in the Grecian 
States. The United Netherlands are at this time 
torn in factions. With these examples before our 
eyes, shall we form establishments which must 
necessarily produce the same effects. It is of no 
6 ibid., IL, p. 10 


[ 89 | 


DEMOCRACY AND REPRESENTATION 


consequence from what districts the second 
branch shall be drawn, if it be so constituted as to 
yield an asylum against these evils.” 

Yet the delegates who withstood the cogent ar- 
guments of Wilson and Gouverneur Morris could 
justify their position by the fact that the State 
systems enjoyed the confidence of the people, 
while the Congress under the Articles of Confed- 
eration was everywhere distrusted and despised. 
James Wilson reviewed the melancholy course of 
disruption which had in a few years destroyed the 
solidarity of the American nation. “Among the 
first sentiments expressed in the first Congress,” 
he said, “‘one was that Virginia is no more, that 
Massachusetts is no more, that Pennsylvania is 
no more, etc. We are now one nation of brethren. 
We must bury all local interests and distinctions. 
This language continued for some time. No 
sooner were the State governments formed than 
their jealousy and ambition began to display 
themselves. Each endeavored to cut a slice from 
the common loaf, to add to his morsel, till at 
length the confederation became frittered down to 
the impotent condition in which it now stands." _- 


16Farrand, I, p. 552 
177bid., p. 166 


| 90 | 


THE FORMS OF GOVERNMENT 


To be sure, the convention had been called to 
alter the Articles of Confederation so as to arrest 
the centrifugal forces of State loyalty. But in 
1787 State boundaries were important factors in 
separating the people of the United States. State 
governments were known and trusted; they had 
carried the people through the war with Great 
Britain while the impotent Congress of the Con- 
federation had been unable to achieve the objects 
for which it was created. It followed that not only 
did men distrust a national government, but they 
also failed to understand that two jurisdictions 
largely coordinate could work toward a similar 
end. They imagined that coordination meant an- 
tithesis, and feared lest the surrender of a portion 
of the power wielded by the States would end in 
the destruction of personal liberty. It could there- 
fore be argued that the national government 
must rest in part upon the States. 

Today the States have declined in importance, 
although therepresentation given them in theSen- 
ate allows them a specious control in the national 
government. The States have, in effect, become 
the “rotten boroughs” of the United States. The 
Seventeenth Amendment removes from senators 
the character of representatives of State gov- 


[91 ] 


DEMOCRACY AND REPRESENTATION 


ernments, but it allows unequal representation 
to groups based upon territorial propinquity. 
In the interest of democracy a further amend- 
ment of the Constitution is required which will 
deprive the States of their equal representation in 
the Senate. Senators, no less than members of the 
House of Representatives, should be apportioned 
on a basis of population. The rule of numbers is 
as just today as when James Wilson made his 
argument in the Federal Convention. 

There is an obstacle in the way of the easy 
achievement of an apportionment of the Senate 
on the basis of population. The Constitution pro- 
vides that no State shall be deprived of its equal 
representation in the Senate without its consent. 
It has been contended that it is entirely possible 
to strike out the whole of Article V, or any part 
of it, by the vote of two-thirds of both Houses of 
Congress and the assent of the legislatures of 
three-fourths of the States. Such course might 
lead to a charge of bad faith but any other view, 
it is argued, would involve a denial of the in- 
alienable and inexhaustible right of the people to 
govern themselves. 

But this view is challenged on the ground that 
it overlooks the fact that the guarantee of equal 


[ 92 ] 


THE FORMS OF GOVERNMENT 


suffrage in the Senate appears in the Constitution 
as an exception from the power of amendment. 
Moreover, it seeks to define as a constitutional 
act what is really an act of revolution. That is to 
say, there are some parts of the Constitution 
which are so fundamental as to be unchangeable 
by the ordinary process of amendment. A politi- 
cal act cannot be both constitutional and revolu- 
tionary; the terms are mutually exclusive. When 
changes are in contemplation which do violence 
to the existing system of government, the acts by 
which they are brought about are revolutionary 
and necessitate “a recurrence to first principles.” 
That was the belief of the men of 1787 when they 
referred the Constitution for ratification to popu- 
lar conventions.!* It is no less true today, for a 
majority of two-thirds of both Houses of Con- 
gress and majorities in the legislatures of three- 
fourths of the States may not represent a major- 
ity of the people of the United States. Indeed, in 
the complex process of amending the Constitu- 
tion the will of a majority of the people may 
never be expressed, except in the two-thirds of 
the members of the House of Representatives 
who probably were not elected on the issue pre- 
18 Farrand, II, p. 93 : 


[ 93 | 


DEMOCRACY AND REPRESENTATION 


sented in the amendment. To maintain that the 
Constitution may be amended in all its parts by 
the process set forth in Article V is to repudiate 
the method by which the instrument was origi- 
nally established. | 

The second of these views has had a history 
almost as old as that of the Constitution itself. 
When the question of amending the constitution 
of South Carolina was advocated in 1794 in order 
to adjust the representation, it was objected that 
“since the existing representation was fixed in the 
constitution it could never be altered. If the con- 
stitution was not conclusive and binding on that 
point it was in none. While the constitution could 
be amended, it was advocating a false principle to 
contend that the constitution was made wrong in 
the first place. If that were true, all parties could 
make objections, and instead of a bond of union 
the constitution would become a cause of conten- 
tion and strife. The idea was that the constitution 
could be amended only in those points that were 
unperfectly covered, or to adjust it to new condi- 
tions not foreseen by its framers.’’!® In the con- 
gressional elections of 1866, the Democratic party 
declared that the Thirteenth Amendment con- 


19W. A. Schaper, Sectionalism in South Carolina, p. 374 
[ 94 | 


THE FORMS OF GOVERNMENT 


travened the property right guaranteed by the 
Constitution and could not be valid. More re- 
cently Mr. Elihu Root, in an effort to overturn 
the prohibition amendment, argued that “Article 
V of the Constitution could not be construed to 
confer unlimited legislative power upon the 
amending authorities. To assume that it does is 
inconsistent with the plain provision of paragraph 
1 of Article I of the Constitution that ‘all legisla- 
tive powers herein granted shall be vested in a 
Congress of the United States,’ and with the 
terms of Article V itself, as the proceedings of 
the Constitutional Convention disclose that the 
framers themselves understood those terms. The 
framers undoubtedly regarded the power to 
amend only as authorizing the inclusion of matter 
of the same general character as the instrument 
or thing to be amended; and as all the constitu- 
tions of their day were concerned solely with the 
distribution and limitation of the powers of gov- 
ernment, and not with the direct exercise thereof 
by the constitution makers themselves, no amend- 
ment of the latter sort would have been deemed 
appropriate or germane by them.”?° 

The question at issue in the controversy over 
20 Rhode Island v. Palmer, 253 U.S., pp. 361-4 


| 95 | 


DEMOCRACY AND REPRESENTATION 


the scope and limits of the power of amendment 
is really one of form. It may be admitted that any 
change in the existing government involves an 
act of revolution, but this does not necessarily re- 
quire the direct assent of the people. Of course, 
the people cannot barter away or delegate to any 
other authority the right of revolution. But that 
is not to say that the people are prevented from 
giving their approval to innovations which have 
been proposed except through a constitutional 
convention. By their acquiescence in a statute 
enacted by Congress or a decision handed down 
by the Supreme Court of the United States they 
may change the existing government quite as 
radically as has been done by any constitutional 
amendment heretofore adopted. 

The framers of the Constitution submitted 
their work to the ratification of popular conven- 
tions in the States because they wished to obtain 
prompt and unconditional approval of the sweep- 
ing changes they proposed. They looked upon the 
establishment of the Constitution “as an act of 
popular revolution, which not only overturned 
the Articles of Confederation, but broke through 
the State constitutions also at essential points.””?! 
*1E.S. Corwin, Doctrine of Judicial Review, p. 84 


[ 96 | 


THE FORMS OF GOVERNMENT 


It was therefore good political tactics for them to 
follow the advice of Madison and to refer the 
Constitution for ratification to popular conven- 
tions in the States.” 

At the same time, Madison was entirely un- 
concerned about the procedure by which the Con- 
stitution should be amended. Some time after the 
Committee of Detail had proposed that “‘on ap- 
plication of the legislatures of two-thirds of the 
States in the Union, for an amendment of this 
Constitution, the legislature of the United States 
shall call a convention for that purpose,””* Madi- 
son objected that the terms “call a convention 
for that purpose” were too vague. He offered a 
substitute proposal which would enable Congress 
by a vote of two-thirds of both Houses, or upon 
application of the legislatures of two-thirds of the 
States, to propose amendments which would be 
valid parts of the Constitution when ratified by 
the legislatures or by conventions in three-fourths 
of the States. George Mason replied that if the 
proposal of amendments were left wholly to Con- 
gress, “no amendments of the proper kind would 


Farrand, II, p. 476 
_ 8ibid., p. 188 
*47bid., pp. 557-9 


[ 97 ] 


DEMOCRACY AND REPRESENTATION 


ever be obtained by the people, if the government 
should become oppressive.” In order to meet this 
objection, an amendment of the article was sug- 
gested so as to require a convention upon applica- 
tion of two-thirds of the States. Madison “‘did not 
see why Congress would not be as much bound to 
propose amendments applied for by two-thirds of 
the States as to call a convention on the lke ap- 
plication. He saw no objection, however, against 
providing for a convention for the purpose of 
amendments, except only that difficulties might 
arise as to the form, the quorum, etc., which in 
constitutional regulations ought to be as much as 
possible avoided.’’?> In other words, Madison in 
laying the basis for Article V of the Constitution 
regarded the amending process as a formal de- 


Farrand, II, pp. 629-30. Lincoln, in his First Inaugural Address, said: “I 
cannot be ignorant of the fact that many worthy and patriotic citizens 
are desirous of having the National Constitution amended. While I 
make no recommendation of amendments, I fully recognize the rightful 
authority of the people over the whole subject, to be exercised in either 
of the modes prescribed in the instrument itself; and I should, under 
existing circumstances, favor rather than oppose a fair opportunity 
being afforded the people to act upon it. I will venture to add that to_ 
me the convention mode seems preferable, in that it allows amendments — 
to originate with the people themselves, instead of only permitting them 
to take or reject propositions originated by others not especially chosen 
for the purpose, and which might not be precisely such as they would 
wish to either accept or refuse.’ Speeches and Letters of Abraham Lin- 
coln, p. 173 


| 98 | 


THE FORMS OF GOVERNMENT 


vice; the efficacy of an amendment, like any other 
part of the Constitution, would depend upon its 
acceptance by the people. 

The difficulty of altering the Constitution with 
respect to the exception contained in Article V 
should not blind us to the fact that the equal rep- 
resentation of the States in the Senate is the ves- 
tige of a political environment that has passed 
away. The Constitution is expected to keep pace 
with the fundamental and permanent changes 
which take place in our society. Changes in the 
Constitution should not be undertaken for light 
and transient causes. At the same time, through 
the agencies of judicial interpretation, statutory 
enlargement, and party practices, new meaning 
is given to ancient forms. When the forms them- 
selves can no longer be adapted to meet the con- 
ditions and problems surrounding the people, as 
well as their ideals, they must be discarded. 

Although the States have ceased to be a factor 
in dividing the people of the United States into 
distinct groups, sectional differences prevail. “As 
the States have declined, sectional self-conscious- 
ness has arisen.” That is to say, the differences 
between sections in economic interests mean also 
*6 Turner, “Sections and Nation,” Yale Review, XII, p. 10 


[ 99 | 


DEMOCRACY AND REPRESENTATION 


differences in political ideas. New England, the 
Middle Atlantic States, the South, the Mississippi 
valley, and the. Pacific coast have distinct differ- 
ences which are reflected in political sentiment. 
Indeed, this was true in 1787. Madison “con- 
ceived that the difference of interest in the United 
States lay not between the large and the small, 
but the Northern and the Southern States.’27 
But the real difference was constantly obscured 
by the alignment of the large and small States 
into distinct parties in the convention. 

The people of the United States fall into six 
more or less distinct groups which differ in social 
and economic interests. New England, the Mid- 
dle Atlantic States, and the Old Northwest be- 
tween the Great Lakes and the Ohio River form 
sections each of which has its own particular in- 
terests. The South, the trans-Mississippi Middle 
West extending to the Rocky Mountains, and the 
Pacific coast are also distinct groupings according 
to economic interests and social characteristics. 
For the most part the States which are included 
in the sectional groupings contain homogeneous 
populations. But in some cases the sectional divi- 
sions cut across State boundaries. It is clear, for 
27 Farrand, I, p. 601 


[ 100 ] 


THE FORMS OF GOVERNMENT 


example, that the southeastern counties in Wis- 
consin belong to the Old Northwest while the in- 
terests of the rest of the State coincide with those 
of the territory immediately beyond the Missis- 
sipp1 River. 

If the members of the Senate were selected 
from sections instead of States, and the appor- 
tionment were made on a basis of population, the 
people would be represented in proportion to 
their numerical strength throughout the country. 
At the same time, this new regionalism would 
enable the various economic interests to display 
their strength in the elections. 

Another advantage which would be derived 
from sectional groupings would be the ease with 
which the decentralization of administration 
could be accomplished. The growing demand for 
the regulation of business by the government has 
tended toward the creation of a bureaucracy at 
Washington not in harmony with the spirit of 
democracy. One step toward the correction of 
this defect was taken in the establishment of the 
Federal Reserve System. Further steps should be 
taken along the same line with the Interstate 
Commerce Commission and other governmental 
agencies. In each section the agencies should 


Bun 


DEMOCRACY AND REPRESENTATION 


be practically autonomous, within the powers 
granted by the Constitution and the acts of Con- 
gress. Such administrative reorganization should 
be accompanied by the regional reorganization of 
the railroads in the United States. 

A further reform which has many earnest 
advocates looks toward the restriction of the 
suffrage. Limitations upon the exercise of the 
franchise were urged by John Stuart Mill in the in- 
terest of democracy. Among the conditions which 
Mill laid down as essential to the success of repre- 
sentative government were a willingness and an 
ability on the part of the people to do what is 
necessary to keep it standing, and to do what is 
required of them to enable it to fulfil its purposes. 
Neither of these conditions can be met by an elec- 
torate that is vicious or illiterate. 

At the time of the framing of the Constitution 
it was believed that “‘all persons should have a 
voice in the government, except those who are in 
so mean a situation that they are esteemed to 
have no will of their own.’’? But there was no 
agreement as to the precise method of determin- 
ing this question. John Adams advocated a small 
property qualification,’® and Madison and Frank- 


*8 Hamilton, Works, I, p. 90 
°°Works, V, p. 457 


[ 102 ] 


THE FORMS OF GOVERNMENT 


lin at one time would have excluded from the 
suffrage all but landowners.** Even Jefferson ap- 
proved the provision in the Spanish constitution 
of 1814 which disfranchised the illiterate.*! Many 
held the view that the unpropertied had no po- 
litical opinion. While nobody would today argue 
that political wisdom resides exclusively in the 
owners of property, it is a pertinent inquiry 
whether we have not gone too far in granting suf- 
frage to persons who are incapable of the intelli- 
gent use of the privilege. 

The enfranchisement of illiterates in the United 
States did not begin with the enforcement of the 
Fifteenth Amendment. Although the highest per- 
centage of illiteracy is to be found among the resi- 
dents of States having large negro populations, 
the ignorant immigrant has been a problem since 
before the Civil War. In the States of the North- 
west admitted into the Union a decade or two 
before 1860, foreigners were encouraged to settle 
and were given the opportunity to participate in 
the government upon the simple declaration of 

intention to become citizens.*? In many cases the 


3°Elliot, Debates, V, p. 387; Benj. Franklin, Works, IV, pp. 221, 224 
Works, VI, p. 592 
® Porter, Suffrage in the United States, Chap. V 


[ 103 ] 


DEMOCRACY AND REPRESENTATION 


succeeding generations justified the liberal fran- 
chise privileges extended to their forebears. But a 
generous policy of immigration brought to our 
shores millions of Europeans who could not grasp 
the meaning of democracy. They could conceive 
of government only in terms of a proletarian des- 
potism, whereby they sought with the inversion 
of social classes to perpetuate the autocratic po- 
litical systems of Europe. It is not without sig- 
nificance that the names which appear on the 
ballot in the columns of parties dedicated to the 
establishment of cheap and tawdry forms of so- 
cialism are those of men who are foreign born or 
of immediate foreign ancestry. 

The extent of illiteracy among the people of the 
United States has only recently been revealed. 
The census of 1920 indicated that there were 
4,931,905 illiterates over the age of ten years of 
whom 4,331,111 persons had reached the voting 
age. But the census definition of illiteracy is no 
schooling whatever. The army psychological tests 
are much more adequate in determining the qual- 
ifications of individuals with respect to literacy. 
In these tests the ability to read and understand 
newspapers and similar printed matter and to 
write letters home in English was indicative of 


[ 104 ] 


THE FORMS OF GOVERNMENT 


literacy on the part of the candidate. The results 
showed that 24.9 per cent of the 1,552,256 men 
between the ages of twenty-one and thirty-one 
examined in connection with the psychological 
tests were illiterate. 

Literacy tests have been adopted in the elec- 
tion laws of at least twenty States at various 
times. Sometimes the tests have been used to ex- 
clude from voting persons whose exercise of the 
franchise would not be to the liking of the domi- 
nant political party. But more often the test 
never revealed the intelligence of the voter at all. 
The requirement in Massachusetts that the voter 
be able to read certain sections of the State con- 
stitution was deemed to be met if the clauses were 
read intelligibly although the voter might have 
no intelligent appreciation of their contents. 

The first State to adopt a literacy test that is 
really adequate is New York. The law provides 
that “after January 1, 1922, no person shall be- 
come entitled to vote by attaining majority, by 
naturalization or otherwise, unless such person 1s 
also able, except for physical disability, to read 
and write English.’’** Suitable tests have been 
prepared which require the “new voter’’ to show 
33New York Constitution, Article XI, Section 1 


[ 105 ] 


DEMOCRACY AND REPRESENTATION 


the same ability to read and write that would be 
expected of the average child who had completed 
the sixth grade in the New York schools. In 1923 
the tests were taken by 25,199 persons, of whom 
21.4 per cent failed. In 1924 the number taking 
the tests rose to 61, 144, of whom only 16.1 per 
cent failed. The failures in New York City were 
somewhat higher, amounting to about 20 per 
cent of the entire number who took the tests.¥ 
External devices cannot create democracy, but 
democracy requires machinery through which the 
popular will may find realization in governmental 
action. Democracy in the United States means 
the supremacy of the numerical majority. A sys- 
tem of governmental checks and balances which 
thwarts rather than subserves the popular will 
can have no place in a democratic state. It was 


3!Comment on the operation of the literacy law in New York will be 
found in the University of the State of New York Bulletin to the 
Schools, March 2, 1925, p. 169. The following table presents the data 


for the past two years: Certificates issued 1923 1924 
On day school credentials 7,929 13,848 
On evening school credentials 767 1,288 
On passing of Regents’ test 19,806 48,888 
No. failed Regents’ test 5,393 12,256 
Per cent of failures 21.4 16.1 
No. issued in cities 21,113 53,936 
No. issued in villages 1,147 2,899 
No. issued in rural districts 6,142 7,187 
Total issued in State 28,402 64,022 


| 106 | 


THE FORMS OF GOVERNMENT 


Alexander Hamilton who argued that simple 
forms of government alone are appropriate in a 
democracy.* Hamilton realized that democracy 
becomes effective only through leadership and 
with the ready and intimate coordination of the 
various departments of the government to reflect 
the will of the people. He recognized what Har- 
rington and John Adams did not admit, that even 
in “a government of laws,” the work must be 
done by men. 

It was a great king of Israel who discerned the 
true basis of rulership when he asked that he be 
given an understanding heart. He realized that a 
state whose rulers have not wisdom cannot long 
endure. This is all the more true in a democracy 
where a full and free play of the critical spirit is 
essential to honest and efficient government. 
Without the exercise of discriminating judgment, 
a people cannot long govern themselves. The 
power supposed to vest in the people becomes in 
fact lodged in the politician whose knowledge of 
tactics enables him to organize human intelli- 
gence and human impulses to promote his own 
ends. 

The discrimination required of a people who are 
% Works, 1X, pp. 71-2 


[ 107 ] 


DEMOCRACY AND REPRESENTATION 


to govern themselves can result only from their 
education. ‘““The best laws,”’ said Aristotle, “will 
be of no avail unless the young are trained by 
habit and education in the spirit of the constitu- 
tion.” Are we in the United States providing 
this type of education? The question is too big 
here to be answered. Our colleges are expected to 
train their young men and young women for the 
ostensible world, which is the world of business. 
Can a system of education designed to increase 
the acquisitive capacity of the individual also 
provide the ethical discipline necessary in a peo- 
ple who are to undertake the task of self-govern- 
ment? A recent writer has remarked that the edu- 
cation of the older generation in America “aimed 
to produce leaders and, as it perceived, the basis 
of leadership is not commercial or industrial eff- 
ciency, but wisdom.’’*” That is to say, the older 
education was a training for wisdom and charac- 
ter. Since it was based on the belief that men need 
to be disciplined to some ethical center, it taught 
the conquest of self which is the first requisite of 
leadership. If the education of today cannot some- 
how inculcate the principle of control, the failure 


36 Politics, Book V, ix 
37J. Babbitt, Democracy and Leadership, p. 304 


[ 108 ] 


THE FORMS OF GOVERNMENT 


of democracy from the want of leadership is only 
a matter of time. 

There is an intimate relationship between the 
system of education in a country and the forms of 
its government. Ten years ago one of the most 
brilliant of the younger German economists came 
to the United States to tell us that the avenues by 
which men advance from one economic or social 
level to another are closed. Therefore it was the 
duty of education, he thought, to train men and 
women to be happy in the social status in which 
they were born. In other words, he revived the 
idea of a static equilibrium of social classes which 
captivated the ancient Greeks and led them to 
adopt it as the basis of their definition of justice. 
- But since November 11, 1918, neither the forms 
of government nor the system of education lauded 
in Germany ten years ago have found a sympa- 
thetic response throughout the world. 

Government is power. That power must be 
lodged somewhere in the state and find the means 
of its exercise is inherent in the very nature of 
government. Since the day of John Locke we 
have looked to the community as a whole for the 
original and supreme will which organizes the 
government and defines its just powers. We have 


[ 109 ] 


DEMOCRACY AND REPRESENTATION 


discovered what was not apparent to some of the 
men of 1787, that the popular will does not emerge 
as a spontaneous emanation from the thoughts of 
men. It is therefore not enough in a democracy to 
insure the accuracy of public opinion. A democ- 
racy also requires the leadership of men and 
women trained in the ethical spirit of auth 
government. oF Alsace 1a 
Whether it can ever be possible to formulae a 
theory of the state depends upon the moral prog- 
gress of mankind. “Justice is the end of govern- 
ment. It is the end of civil society,” wrote the 
authors of the Federalist.** They then proceeded 
to show that injustice arises largely from the fac- 
tious nature of man. That is to say, justice in the 
state is the resultant of justness in men. The 
foundations of a popular government are laid in 
the virtue and wisdom of the people by whose 
consent it was reared and is maintained. It may 
be true that the chief business of the statesman is 
to adjust the conflicting interests of individuals 
or groups in society. But this remains a problem 
in externals. The principles which are to control 
the destiny of a state must be sought in the wis- 
dom and character of its citizens. 
3No. 51 


anon 


Index 


Apams, John, 102, 107 
Aristotle, 108 


BrntTuaM, Jeremy, 51 
Butler, Pierce, 26, 30 


CaBINET System, advocated by 
Mercer, 44-5; defeated in Con- 
gress, 45-7; not reflected in po- 
litical theory in 1787, 44; op- 
posed by Charles Pinckney, 45 


DeEcLaRATION of Independence, 
fixed limits of political specula- 
tion in 1787, 9; states democratic 
dogma, 1 

democracy, defects in, 18-20; 
eighteenth century conception 
of, 1-2; favored by economic 
circumstances, 17-18; and the 
Constitution, 33; and literacy 
tests, 103-6 

Dickinson, John, 34, 56 


Equauity, in the United States 
(1787), 17-18; as viewed by 
Madison, 18-20 

FRANKLIN, Benjamin, 102 

Gerry, Elbridge, 30, 45 

Hamiuton, Alexander, argues for 


representative character of the 
presidency, 62; attacks group 


representation, 78-82; defines re- 
public, 73; his conception of gov- 
ernment, 11-13; his law of politi- 
cal development, 8-10; his na- 
tionalism, 13-14; opposes fre- 
quent elections, 53 

Harrington, James, 33, 107 

Henry, Patrick, 57 

Hobbes, Thomas, 49 


Jay, John, 83 
Jefferson, Thomas, 103 
Johnson, William S., 14 


Kine, Rufus, 25 
Knox, Henry, 55 


Liserty, the central problem of 
democracy, 18 

Lincoln, Abraham, 37 

Locke, John, 3, 37, 109 


Mapison, James, argues for secu- 
rity of private rights, 9; edu- 
cated at Princeton, 5; explains 
sources of the Constitution, 35; 
favors freehold qualifications for 
suffrage, 26, 102; his view of 
democracy, 18-20; method of his 
political reasoning, 4-7; on 
amending the Constitution, 97— 
8; on group representation, 76-8; 
on independence of the execu- 
tive, 63; on influence of the 
West, 33; on public opinion, 52; 


INDEX 


opposes equal representation of 
States, 54-5; recognizes sover- 
eignty of the people, 1; seeks 
remedy for factions, 20-2 

Marshall, John, 41 

Mason, George, explains suffrage 
qualifications, 24; favors liberal 
franchise, 84; his view of the ap- 
portionment of representation, 
31; on amending the Constitu- 
tion, 97 

Mercer, John F., 44-5, 50 

Mill, James, 41 

Mill, John Stuart, 8, 57, '70, 84, 102 

Montesquieu, Baron, 6, 22-3 

Morris, Gouverneur, advocates re- 
stricted suffrage, 24; argues for 
apportionment of representation 
on basis of property, 28-9; ar- 
gues for representative character 
of the presidency, 62-3; attacks 
equal representation of States, 
89; warns against legislative du- 
plicity, 50-1 

Morris, Robert, 46 


NATIONALISM, advocated by Ham- 
ilton, 13; in America in 1776, 90 


PARTICULARISM, evils of, 60-1, 90; 
in Convention of 1787, 13; per- 
meates Congress, 58-9 

Paterson, William, defines princi- 
ple of representation, 39-40; se- 
cures equal representation of 
States in the Senate, 54 

Pinckney, Charles, attacks Madi- 
son’s method of political reason- 
ing, 7; envisages equality in 
America, 17-18; gives formula 


for representative democracy, 
74; opposes cabinet system, 45 

popular sovereignty, in 1776, 1; in 
1787, 2; identified with right of 
revolution, 4 


Ranpo.peH, Edmund, 31 

republic, defined, 73 

representation, apportionment of, 
27 ff; and the President, 62 77; 
and restrictions on suffrage, 
102 ff.; and sectional groups, 99— 
102; debated in Convention of 
1787, 74-5; evils of equal, 88-90; 
in State constitutions, 50; of 
economic groups, 75 ff.; outlined 
in the Constitution, 43-4; per- 
version of the principle of, 51-2; 
principle of, 39 ff.; reform in ap- 
portionment of, 91 ff.; substitute 
for direct popular action, 39, 48; 
theory of James Mill, 41, 53-4 

Roosevelt, Theodore, 65-6 

Root, Elihu, 95 

Rousseau, Jean-Jacques, 36, 40, 74 

Rush, Benjamin, 36 

Rutledge, John, 30 


SELDEN, John, 39 

Sherman, Roger, 69 

social contract, in Massachusetts 
(1780), 3 

state of nature, as defined in 1776, 
2-3 

suffrage, and illiteracy, 102-6; and 
property qualifications, 23, 25-6; 
effects of equal, 19 


Tart, William H., 66-7 


howe) 


INDEX 


Wi1son, James, attacks equal rep- 
resentation in the Senate, 88-9; 
declares State legislatures do not 
represent the popular will, 51; 


48-9; his theory of representa- 
tion, 40, 53-4; opposes limita- 
tions on the franchise, 26; points 
to evils of particularism, 90 


his conception of democracy, 15—- Wilson, Woodrow, 67-9 
16; his definition of the State, Witherspoon, John, 5 


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